THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

RIVERSIDE 

GIFT  OF 

A.  L.  D.  Warner 


JOSEPH  McDONOUGH  CO 

•CARCE  AND  FINE  BOOKS 

Aimany.  n  T. 


REVISED  RECORD 


CONSTITUTIONAL  CONVENTION 


STATE  OF  NEW  YORK 


May  8,  1894,  to  September  29,  1894 


REVISED  BY 

HON.  WILLIAM   H.  STEELE, 

VICE-PRESIDENT  OF  THE  CONSTITUTIONAL  CONVENTION  OF  1894, 

Pursuant  to  Chap.  21,  Laws  of  1898. 


PUBLISHED  UNDER  DIRECTION  OF 

HON.  CHARLES  E.  FITCH,  L.  H.  D., 

SECRETARY  OF  THE  CONSTITUTIONAL  CONVENTION   OF  1894, 

Pursuant  to  Chap.  4.19,  Laws  of  /poo. 


Vol.  II. 


ALBANY: 

THE    ARGUS    COMPANY.    PRINTERS. 
1900, 


AIL 


REVISED  RECORD 


OF   THE 


CONSTITUTIONAL  CONVENTION 


STATE  OF  NEW  YORK. 


VIAY    8,  1894,  TO    SEPTEMBER    29,  1894. 


EVENING  SESSION. 
Wednesday  Evening,  August  i,  1894. 

The  Constitutional  Convention  of  the  State  of  New  York  met, 
pursuant  to  recess,  in  the  Assembly  Chamber,  in  the  Capitol,  at 
Albany,  N.  Y.,  Wednesday  evening,  August  i,  1894,  at  eight  o'clock. 

President  Choate  called  the  Convention  to  order. 

Mr.  Crosby  moved  that  the  privileges  of  the  floor  be  extended 
to  the  Hon.  Timothy  Sanderson. 

The  President  put  the  question  on  the  motion  of  Mr.  Crosby,  and 
it  was  determined  in  the  affirmative. 

Mr.  Forbes  asked  unanimous  consent  to  introduce 
O.  373. —  Proposed  amendment  to  article  3  of  the  Constitution, 
by  adding  a  new  section  relating  to  charities  and  corrections. 
Referred  to  the  Select  Committee. 
The  President  —  General  orders  are  in  order. 

Mr.  Marshall  moved  that  the  Convention  go  into  Committee  of 
the  Whole  on  general  order  No.  12. 

The  President  put  the  question  on  the  motion  of  Mr.  Marshall, 
and  it  was  determined  in  the  affirmative,  whereupon  the  Conven- 
tion resolved  itself  into  Committee  of  the  Whole,  and  Mr.  Peck  took 
the  chair. 

The  Chairman  —  The  Convention  is  in  Committee  of  the  Whole 
on  proposed  constitutional  amendment,  general  order  No.  12,  intro- 
ductory No.  368,  which  the  Secretary  will  please  read  by  sections. 


4  REVISED  RECORD.  [Wednesday, 

The  Secretary  read  the  proposed  amendment  as  follows: 

STATE  OF  NEW  YORK. 
G.  O.  No.  12.  No.  375.  Int.  368. 


IX  CONVENTION. 


Introduced  by  Committee  on  Future  Amendments  as  a  substitute  to 
amendments,  introductory  numbers  fifty-nine,  ninety-four,  one 
hundred  and  forty-two,  one  hundred  and  forty-four,  one  hundred 
and  eighty-nine,  two  hundred  and  four,  two  hundred  and  thirty- 
seven,  two  hundred  and  fifty-six,  two  hundred  and  eighty-five  and 
two  hundred  and  eighty-nine  —  read  twice  and  referred  to  the 
Committee  of  the  Whole. 

PROPOSED  CONSTITUTIONAL  AMENDMENT 

To  amend  article  thirteen  of  the  Constitution,  relating  to  further 

amendments. 

The  Delegates  of  the  People  of  the  State  of  Nezv  York,  in  Convention 
assembled,  do  propose  as  folloivs: 

Article  thirteen  of  the  Constitution  is  hereby  amended  so  as  to 
read  as  follows : 

ARTICLE  XIII. 

Amendments, 

SECTION  I.  Any  amendment  or  amendments  to  this  Constitu- 
tion may  be  proposed  in  the  Senate  and  Assembly;  and  if  the  same 
shall  be  agreed  to  by  a  majority  of  the  members  elected  to  each 
of  the  two  houses,  such  proposed  amendment  or  amendments  shall 
be  entered  on  their  Journals,  with  the  yeas  and  nays  taken  thereon, 
and  referred  to  the  Legislature  to  be  chosen  at  the  next  general 
election  of  Senators,  and  shall  be  published  for  three  months  pre- 
vious to  the  time  of  making  such  choice;  and  if  in  the  Legislature 
so  next  chosen,  as  aforesaid,  such  proposed  amendment  or  amend- 
ments shall  be  agreed  to  by  a  majority  of  all  the  members  elected 
to  each  house,  then  it  shall  be  the  duty  of  the  Legislature  to  submit 
such  proposed  amendment  or  amendments  to  the  people  for  approval 
in  such  manner  and  at  such  times  as  the  Legislature  shall  prescribe. 
Such  approval  shall  be  expressed  in  one  of  the  following  methods: 
First,  if  such  amendment  or  amendments  are  submitted  at  a  special 
election,  by  the  affirmative  votes  of  a  majority  of  the  electors  quali- 
fied to  vote  for  members  of  the  Legislature,  voting  thereon;  second, 


August  i.j  CONSTITUTIONAL  CONVENTION.  $ 

if  submitted  at  a  general  election,  by  the  affirmative  votes  of  a 
majority  of  all  the  qualified  electors  who  shall,  at  the  same  election, 
vote  for  members  of  the  Assembly ;  or,  third,  provided  three-fourths 
of  such  qualified  electors  shall  vote  thereon,  by  the  affirmative 
votes  of  a  majority  of  the  electors  voting  thereon;  any  amendment 
or  amendments  so  approved  shall  go  into  effect  on  the  first  day  of 
January  next  after  its  approval. 

Constitutional   Co  nvention. 

§  2.  At  the  general  election  to  be  held  in  the  year  nineteen  hun- 
dred and  sixteen,  and  every  twentieth  year  thereafter,  and  also  at 
such  times  as  the  Legislature  may  by  law  provide,  the  question, 
"  Shall  there  be  a  Convention  to  revise  the  Constitution  and  amend 
the  same?"  shall  be  decided  by  the  electors  qualified  to  vote  for 
members  of  the  Legislature,  and  in  case  a  majority  of  the  electors 
so  qualified,  voting  at  such  election  for  members  of  the  Assembly, 
shall  decide  in  favor  of  a  Convention  for  such  purposes,  the  electors 
of  every  Senate  district  of  the  State,  as  then  organized,  snail  elect 
four  delegates  at  the  next  ensuing  election  at  which  any  members 
of  the  Legislature  shall  be  chosen,  and  the  electors  of  the  State 
voting  at  the  same  election  shall  elect  fifteen  delegates-at-large. 
The  delegates  so  elected  shall  convene  at  the  capitol  on  the  first 
Tuesday  of  April  next  ensuing,  after  their  election,  and  shall  con- 
tinue their  session  until  the  business  of  such  Convention  shall  have 
been  completed,  not  to  exceed  five  months. 

Every  delegate  shall  receive  for  his  services  the  same  compensa- 
tion and  the  same  mileage  as  shall  then  be  annually  payable  to  the 
members  of  the  Assembly.  A  majority  of  the  Convention  shall 
constitute  a  quorum  for  the  transaction  of  business,  and  no  amend- 
ment to  the  Constitution  shall  be  submitted  for  approval  to  the 
electors  as  hereinafter  provided,  unless  by  the  assent  of  a  majority 
of  all  the  delegates,  the  yeas  and  nays  being  entered  on  the  Journal 
to  be  kept.  The  Convention  shall  have  the  power  to  appoint  such 
officers,  employes  and  assistants,  as  it  may  deem  necessary,  and 
provide  for  the  printing  of  its  documents.  Journal  and  proceedings. 
The  Convention  shall  determine  the  rules  of  its  own  proceedings, 
choose  its  own  officers  and  be  the  judge  of  the  election,  returns 
and  qualifications  of  its  members.  In  case  of  a  vacancy  by  death, 
resignation  or  other  cause,  of  any  of  its  members,  such  vacancy 
shall  be  filled  by  a  vote  of  a  majority  of  all  the  delegates.  Any 
proposed  Constitution  or  constitutional  amendment  which  shall 
have  been  adopted  by  such  Convention,  shall  be  submitted  to  a  vote 
of  the  qualified  electors  of  the  State  at  the  time  and  in  the  manner 


6  REVISED   RECORD.  [Wednesday, 

provided  by  such  Convention,  at  an  election  which  shall  be  held  not 
less  than  six  weeks  after  the  adjournment  of  such  Convention. 
Upon  the  approval  of  such  Constitution  or  constitutional  amend- 
ments, in  the  manner  provided  in  the  last  preceding  section,  such 
Constitution  or  constitutional  amendment,  shall  go  into  effect  on 
the  first  day  of  January  next  after  its  approval. 

Mr.  Alvord — Mr.  Chairman,  I  call  attention  to  the  fact  that,  so 
far  as  we  have  it  on  the  calendar,  the  latter  part  of  the  amendment 
is  not  read  as  it  reads  here. 

The  Chairman  —  The  Chair  will  call  attention  to  the  fact  that 
there  is  a  typographical  error  in  the  order  as  printed.  In  line  19, 
upon  page  2,  the  words  "  second,  if  submitted  at  a  general  election 
by  the  "  are  erased,  and  the  words  "  any  amendment  or  amend- 
ments so  approved  "  interlined. 

Mr.  Alvord  —  There  is  no  mark  to  designate  what  the  amend- 
ment is,  Mr.  Chairman. 

Mr.  Moore  —  Mr.  Chairman,  if  amendments  are  in  order  at  this 
time,  I  desire  to  offer  an  amendment  to  this  amendment. 

The  Chairman  —  I  suppose  that  any  business  in  regard  to  this 
general  order  is  now  in  order. 

Mr.  Moore  —  I  move,  Mr.  Chairman,  to  amend  the  proposed 
amendment  on  page  3,  by  inserting  in  line  6,  instead  of  the  word 
"four,"  "five  district,"  making  it  read  "five  district  delegates." 

The  Chairman  —  Will  the  gentleman  put  his  amendment  in 
writing  and  send  it  to  the  desk? 

Mr.  Moore  —  I  will,  sir. 

Mr.  Marshall  —  Mr.  Chairman,  for  the  purpose  of  explaining  the 
proposed  constitutional  amendment  which  it  now  before  the  Com- 
mittee of  the  Whole,  I  move  to  strike  out  all  of  such  proposed 
amendment  except  the  first  line. 

Under  the  present  Constitution  there  are  two  methods  for  the 
amendment  or  revision  of  the  Constitution.  One  is  by  amendment 
inaugurated  in  the  Legislature;  the  other  is  by  revision  or  amend- 
ment which  is  inaugurated  in  the  Constitutional  Convention. 

The  committee  has  had  presented  to  it  some  nine  or  ten  different 
proposed  amendments  relative  to  the  holding  of  future  Constitu- 
tional Conventions,  and  with  respect  to  the  amendment  of  the  Con- 
stitution through  the  medium  of  the  Legislature.  After  fully  con- 
sidering the  various  propositions,  the  article  which  is  now  presented 
was  framed  by  the  committee  with  a  view  to  presenting  all  the  best 
elements  of  all  the  different  provisions  which  have  been  proposed, 


August  i.]  CONSTITUTIONAL  CONVENTION.  7 

together  with  some  new  matter.  The  committee  found,  upon 
examining  the  Constitutions  of  various  States,  that  there  was  great 
diversity  of  opinion  as  to  what  was  the  proper  course  to  pursue 
with  respect  to  the  amendment  of  a  Constitution.  In  some  States 
the  only  method  allowed  was  by  means  of  a  Constitutional  Conven- 
tion; in  some,  only  through  the  Legislature.  In  some  instances  it 
was  required  that  the  people  should  ratify  the  action  of  the  Consti- 
tutional Convention  or  Legislature;  in  others  no  such  requirement 
was  inserted  in  the  fundamental  law.  Our  Constitution,  very  curi- 
ously, merely  provides  for  the  approval  of  the  work  of  the  Legisla- 
ture, where  it  is  sought  to  amend  the  Constitution  through  it.  With 
respect  to  the  Constitutional  Convention  there  is  no  provision  which 
requires  any  action  on  the  part  of  the  people  in  ratification  of  the 
will  expressed  by  the  Constitutional  Convention.  It  was  thought 
by  the  committee  it  would  be  proper  to  require  approval  by  the 
people  of  the  work  of  the  Constitutional  Convention.  That  has 
been  the  uniform  course  of  practice  in  this  State  in  respect  to  all  the 
Constitutional  Conventions  that  have  been  held  therein,  although 
there  was  no  requirement  which  called  for  a  submission  to  the  peo- 
ple for  approval  of  the  action  of  the  Convention.  Another  matter 
which  enlisted  the  attention  of  the  committee  was  that  so  far  as  the 
Constitutional  Convention  was  concerned  it  was  left  entirely  with 
the  Legislature  to  determine  whether  or  not  the  will  of  the  people, 
as  expressed  at  the  polls,  to  the  effect  that  a  Convention  should  be 
held,  could  or  could  not  be  effectuated.  In  1886  the  people  of  this 
State  voted  by  a  very  large  majority  that  there  should  be  a  Consti- 
tutional Convention  held.  The  Legislature  and  the  Governor  were 
unable  to  agree  as  to  the  method  by  which  such  Convention  should 
be  held,  as  to  the  selection  of  delegates,  and  as  to  the  time  when  it 
should  be  held,  and  the  result  is,  as  is  well  known  by  all,  that  eight 
years  have  elapsed  since  the  time  when  the  people  declared  that 
they  wished  a  Convention,  before  their  wish  was  finally  carried  into 
effect  by  the  holding  of  the  present  Convention.  For  the  purpose 
of  avoiding  a  repetition  of  such  a  state  of  affairs  in  the  future,  it  has 
been  deemed  prudent  to  insert  in  the  Constitution  provisions  which 
would  make  the  declaration  of  the  people,  that  they  would  have  a 
Convention,  self-executing.  In  other  words,  that  when  the  peo^'e 
should  say  that  the  Convention  would  be  held,  all  that  would  remain 
to  be  done  would  be  to  pursue  the  ordinary  political  methods  obtain- 
ing in  respect  to  the  election  of  members  of  Assembly  or  State 
Senators  at  the  next  ensuing  election,  and  that  then  the  people 
should  vote  for  such  number  of  delegates  as  should  be  provided 
for  in  the  Constitution,  and  the  Convention  would  then  proceed  with 


8  REVISED  RECORD.  [Wednesday1, 

the  transaction  of  its  business.  To  that  end  it  was  also  deemed 
necessary  that  the  action  of  the  Convention  should  in  some  manner 
be  regulated  by  the  Constitution,  and  hence  provisions  similar  to 
those  found  in  that  article  of  the  Constitution  relative  to  the  Legis- 
lature were  inserted.  The  compensation  of  the  delegates  is  fixed 
to  be  the  same  as  that  payable  to  members  of  Assembly.  A  cpiorum 
is  defined.  The  vote  necessary  for  the  passage  of  a  constitutional 
amendment  is  specified.  The  power  "of  the  Convention  as  to  the 
appointment  of  officers,  as  to  the  printing  of  its  docments,  journal 
and  proceedings,  as  to  the  adoption  of  rules,  and  also  a  provision 
that  the  Convention  shall  be  the  judge  of  the  election  returns  and 
qualifications  of  its  members;  which  provision,  although  deemed 
unnecessary,  in  view  of  the  action  by  this  Convention  in  the  Trap- 
per case,  was,  nevertheless,  thought  proper  to  be  inserted  as  a  mat- 
ter of  greater  precaution,  and  for  the  purpose  of  having  in  one 
section  of  the  Constitution  all  provisions  necessary  for  the  definition 
of  the  powers  of  the  Convention.  Then  followed  provisions  as  to 
the  time  when  the  work  of  the  Convention  should  be  submitted  to 
the  people,  the  length  of  the  session  of  the  Convention,  and,  finally, 
provisions  as  to  the  method  of  approving  the  work  of  the  Conven- 
tion. Those  methods  are  the  same  as  are  prescribed  by  section  i, 
which  relates  to  amendments  which  originate  in  the  Legislature, 
and  in  that  respect  there  is  a  new  provision  inserted  in  the  Consti- 
tution. The  present  Constitution  only  requires  that  there  shall  be 
ratification  or  approval  by  the  people  of  amendments  which  have 
been  passed  by  the  two  several  Legislatures,  and  which  are  sub- 
mitted to  the  people  for  adoption  or  rejection.  The  Constitution 
now  provides  that  the  approval  shall  be  expressed  in  such  manner 
and  at  such  times  as  the  Legislature  may  prescribe. 

It  is,  however,  thought  necessary  that  there  should  be  some 
provision  inserted  in  the  Constitution  which  will  define  to  a  certain 
extent  the  number  of  votes  which  should  be  cast  upon  the  question 
of  the  adoption  of  an  amendment  to  the  fundamental  law,  and  for 
this  reason,  upon  examining  the  history  of  constitutional  amend- 
ments which  have  been  adopted  in  this  State  since  the  Constitution 
of  1846  was  passed  upon  by  the  people,  we  find  that  some  important 
amendments  have  been  passed  by  a  ridiculously  small  number  of 
voters.  Thus,  for  instance,  in  the  year  1879,  there  were  cast  at  the 
general  election,  at  which  the  amendment  to  article  6  of  the  Consti- 
tution was  adopted,  for  State  officers,  901,535  votes.  At  the  same 
election  the  amendment  referred  to  was  voted  upon  and  was  adopted 
by  a  vote  of  95,000  of  the  voters  of  the  State  in  favor  of  the  amend- 
ment to  the  Constitution,  and  25,000  votes  against  it.  In  other 


August  i.]  CONSTITUTIONAL  CONVENTION.  9 

words,  120,909  votes  were  cast  upon  the  Constitutional  amendment, 
and  901,535  were  cast  for  State  officers.  Not  more  than  one-eighth 
of  the  total  vote  cast  at  the  election  was  cast  upon  the  adoption  of 
the  amendment,  and  not  more  than  one-tenth  of  the  vote  cast  for 
Governor  was  cast  in  favor  of  the  constitutional  amendment.  So, 
in  1880,  there  were  cast  at  the  election  held  in  that  year,  1,103,945 
votes  for  the  officers  voted  for  by  the  people  at  that  election.  At 
the  same  election  the  people  voted  upon  the  amendment  which  gave 
retired  pay  to  the  judges  of  the  Supreme  Court  and  of  the  Court  ot 
Appeals,  which  has  been  the  subject  of  so  much  contention  and 
controversy  and  discussion  in  this  Convention.  For  that  amend- 
ment there  were  cast,  in  all,  333,128  votes,  222,000  being  in  favor 
of  the  amendment,  and  111,000  against  it.  So  that  not  more  than 
about  one-quarter  of  the  total  vote  of  the  State  was  cast  upon  the 
adoption  of  the  amendment,  and  no  more  than  about  one-sixth  of 
the  total  vote  cast  at  that  election  was  in  favor  of  the  proposed 
amendment. 

I  have  a  number  of  other  examples  of  a  similar  character  to  which 
I  could  refer,  as,  for  instance,  the  proposed  amendments  voted  upon 
in  1892,  one  of  which  was  calculated  to  give  to  the  judges  of  the 
Supreme  Court  the  power  to  pass  upon  contested  election  cases 
which  would  rise  in  the  legislative  body.  There  were  not  more 
than  354,000  votes  cast  upon  that  proposition,  and  it  was  only  by  a 
few  thousand  votes  that  the  proposed  amendment  was  lost,  although 
at  that  election  1,341,617  votes  were  cast  by  the  voters  of  this 
State.  So  that  a  very  material  change  in  the  Constitution  might 
have  been  effected  by  the  change  of  only  a  few  thousand  votes,  with 
so  small  a  fraction  of  the  voters  of  the  State  casting  their  ballots 
upon  that  important  subject. 

Now,  it  has  been  the  idea  of  the  committee  which  has  framed  this 
proposed  constitutional  amendment,  that  it  was  wrong  to  permit 
such  a  state  of  affairs  to  longer  continue;  not  only  that  it  was 
wrong,  but  that  a  great  danger  threatened  the  State  if  we  permitted 
the  fundamental  law  to  be  so  easily  changed  in  material  respects; 
that  it  would  be  not  difficult  to  imagine  cases  where  our  entire 
system,  in  most  important  particulars,  could  be  put  aside  and  set 
at  naught  by  the  action  of  some  secret  association  operating 
together  as  a  unit,  as  against  the  voters  who  pay  no  attention  to 
the  adoption  of  constitutional  amendments.  All  who  have  paid 
any  practical  attention  to  elections  and  to  politics  know  that  the 
ordinary  voter,  when  he  is  asked  to  vote  upon  a  constitutional 
amendment,  will  say:  "I  don't  know  much  about  this  subject,  but 
the  present  Constitution  is  good  enough  for  me;  I  don't  care  for 


10  REVISED  RECORD.  [Wednesday, 

any  change,"  and  he  does  not  vote  upon  the  subject  of  a  proposed 
change,  believing  that  his  silence  is  equivalent  to  negation;  that  it 
is  equivalent  to  a  declaration  that  the  present  Constitution  should 
continue  without  change. 

For  the  purpose  of  meeting  this  idea  we  have  provided  that  the 
approval  of  the  people  might  be  expressed  by  one  of  three  methods. 
If  the  amendment  should  be  submitted  to  the  people  at  a  special 
election,  which  might  be  done  by  the  Legislature  or  by  the  Constitu- 
tional Convention  under  the  provisions  which  we  have  inserted 
here,  then  it  would  be  sufficient  if  the  affirmative  vote  of  a  majority 
of  the  electors  qualified  to  vote  for  members  of  the  Legislature- 
voting  thereon,  should  be  given  for  the  proposed  amendment. 

The  reason  for  this  provision  is  that  if  there  is  a  special  election 
upon  the  subject  of  a  change  in  the  fundamental  law,  no  other  busi- 
ness being  before  the  people  at  that  time,  their  minds  would  not  be 
diverted  from  the  subject  under  consideration  by  the  political  excite- 
ments which  are  incident  to  general  elections,  and  they  would  intel- 
ligently vote  upon  the  question  proposed;  and  in  that  event  a 
majority  of  those  voting  upon  the  proposed  amendment  should 
control. 

The  next  provisions  relate  to  a  submission  of  the  proposed 
amendment  at  a  general  election.  In  respect  to  such  election,  it  is 
provided  that  it  shall  be  necessary  to  have  cast  in  favor  of  the  pro- 
posed amendment,  either  the  affirmative  vote  of  a  majority  of  all 
the  qualified  electors  who  shall  at  the  same  election  vote  for  mem- 
bers of  Assembly,  or,  provided  three-fourths  of  such  qualified  elect- 
ors shall  vote  thereon,  by  the  affirmative  vote  of  a  majority  of  the 
electors  voting  thereon. 

The  reason  why  we  have  these  alternatives  is  as  follows.  It  is 
possible  that  the  people  may  be  so  practically  unanimous  in  favor  of 
the  proposed  constitutional  amendment  that  a  majority  of  all  voters 
voting  at  the  election  in  favor  of  members  of  assembly  throughout 
the  State  would  be  favorable  to  the  proposed  change.  Therefore,  it 
would  be  necessary  to  obtain  a  vote,  upon  the  question,  of  three- 
fourths  of  all  the  voters.  On  the  other  hand,  a  majority  of  all  the 
voters  who  vote  for  members  of  assembly  might  not  be  favorable 
to  the  proposed  amendment.  But  there  might  be  cast  a  vote  equal 
to  three-fourths  of  those  voting  for  members  of  Assembly,  and,  in 
that  event,  a  majority  of  those  voting  would  control. 

To  illustrate:  if,  at  a  certain  election,  one  million  voters  vote  for 
members  of  Assembly  throughout  the  State,  and  501,000  voters 
have  voted  in  favor  of  a  constitutional  amendment  proposed;  they 
constitute  a  majority  of  all  voting  for  members  of  Assembly;  and 


August  i.]  CONSTITUTIONAL  CONVENTION.  11 

although  no  other  votes  may  be  cast  upon  the  constitutional  amend- 
ment, their  votes  should  control.  On  the  other  hand,  if  750,000 
voters  shall  vote  at  the  election  for  the  constitutional  amendment, 
that  would  be  three-fourths  of  all  the  votes  cast  for  members  of 
Assembly;  376,000  votes  would  be  a  majority  of  the  750,000  voting 
upon  the  constitutional  amendment,  and  their  votes  should  be  suf- 
ficient to  effect  a  change  in  the  Constitution.  So  that  by  these 
various  methods  we  have  provided  for  the  adoption  of  any  worthy 
amendment  upon  which  there  shall  be  cast  either  the  affirmative 
vote  of  a  majority  of  the  electors  of  the  State  voting  at  the  election 
for  members  of  Assembly,  or  provided  three-quarters  of  the  voters 
shall  vote  upon  the  amendment,  a  majority  of  such  voters  voting 
thereon. 

Now,  it  is  possible  that  the  members  of  this  Convention  may 
deem  the  proportion  of  voters,  three-quarters,  as  too  large.  I  am 
not  particularly  anxious  that  it  shall  be  three-fourths.  I  have  no 
objection  to  having  the  number  of  voters  fixed  at  two-thirds.  But 
I  have  fixed  it  at  three-fourths,  after  discussion  with  the  members 
of  the  committee,  who  thought  that  three-fourths  was  the  proper 
proportion  of  voters  to  be  required,  and,  also,  after  conversation 
with  various  members  of  the  Convention,  who  agreed  with  that 
figure.  But  whatever  is  determined  upon  the  subject,  I  hope  that 
this  Convention  will  not  perpetuate  the  present  system,  which  will 
permit  one  hundred  thousand  out  of  a  million  voters  to  change  the 
fundamental  law  of  the  State.  It  is  to  be  presumed  that  the  voters 
who  do  not  cast  their  votes  upon  the  subject  are  satisfied  with  the 
present  condition  of  affairs;  and  in  so  important  a  matter  as  a 
change  in  the  fundamental  law,  there  must  be  some  strong  demand 
by  the  people  in  favor  of  the  change  before  it  should  be  permitted 
to  be  wrought. 

I  think  I  have  now  stated  in  a  general  way  what  the  theories  are 
which  have  led  to  the  making  of  the  changes  that  are  contained  in 
this  provision.  For  the  information  of  the  members  who  may  have 
been  misled  by  the  manner  in  which  this  amendment  has  been 
printed,  I  would  say  that  the  new  matter  is  that  which  is  contained 
on  page  2,  between  lines  10  and  21 ;  and  on  page  3,  beginning  after 
the  word  "  that "  on  page  3,  and  also  the  whole  of  page  4. 

I  wish  also  to  state,  in  reference  to  the  provision  inserted  in  sec- 
tion 2,  which  provides  that  the  electors  of  every  Senate  district  in 
the  State,  as  organized  at  the  time  when  the  Constitutional  Con- 
vention is  to  be  held,  shall  elect  four  delegates,  and  the  electors  of 
the  State,  fifteen  delegates-at-large,  the  committee  had  considerable 
discussion  as  to  the  proper  number  to  be  voted  for.  The  reason 


12  REVISED  RECORD.  [Wednesday, 

why  the  committee  selected  this  number  is  briefly  this,  it  was 
thought  that  it  would  not  be  prudent  to  have  a  Convention  which 
would  be  very  much  larger  than  the  present  Convention;  that  it 
was  quite  probable  that  this  Convention  would  make  provision  for 
the  increase  of  the  Senatorial  districts  in  the  State  from  thirty-two 
to  fifty.  If  we  have  fifty  Senatorial  districts,  to  have  more  than 
four  delegates  from  each  district  would  very  largely  swell  the  num- 
ber of  delegates  in  the  Convention.  If  there  were  five  delegates 
from  each  Senatorial  district,  as  has  been  suggested,  and  as  we  now 
have,  there  would  250  delegates  besides  the  fifteen  delegates-at- 
large,  or  a  total  of  265  delegates  in  the  Convention,  which  many 
of  us  fear  would  be  too  many  for  the  proper  expedition  of  the  busi- 
ness intrusted  to  the  Convention.  If  there  are  thirty-two  Senatorial 
districts,  then  we  would,  of  course,  be  in  our  present  situation,  and 
there  would  be  no  objection  to  the  continuance  of  five  district  dele- 
gates. If  we  retain  our  thirty-two  Senatorial  districts  then  we  would 
have,  under  the  plan  proposed  by  the  committee,  143  delegates  in 
the  Convention,  which  is  not  much  less  than  the  number  in  the 
present  Convention,  and  all  useful  purposes  might  perhaps  be  sub- 
served by  them.  We  have  arrived  at  this  conclusion  in  reference 
to  four  delegates,  however,  mainly  upon  the  idea  that  upon  a  proper 
system  of  apportionment  it  may  be  necessary  to  have  fifty  Senatorial 
districts.  I  may  hereafter  be  required  to  make  further  explanation 
of  the  provisions  of  this  proposed  amendment,  but  for  the  present 
I  withdraw  my  motion  to  strike  all  that  follows  the  first  line,  and 
leave  the  matter  for  further  discussion. 

Mr.  Moore  —  Mr.  Chairman,  I  will  now  hand  up  my  proposed 
amendment,  which  relates  to  section  2,  and  request  the  Secretary  to 
read  it  to  the  Convention. 

The  Secretary  read  the  amendment  of  Mr.  Moore,  as  follows: 
In  line  6,  page  3,  strike  out  the  word  "four"  and  insert  the  words 
"  five  district."  In  line  23,  same  page,  after  the  word  "  necessary," 
insert  "  and  fix  their  compensation."  In  line  2,  page  4,  after  the 
word  "  vacancy,"  insert  "  if  of  a  delegate-at-large."  In  line  3  of  the 
same  page,  after  the  word  "delegates,"  insert  "elected  and  qualified, 
and  if  the  vacancy  shall  be  occasioned  by  death,  resignation  or  other 
cause,  of  a  district  delegate,  such  vacancy  shall  be  filled  by  a 
majority  of  the  district  delegates  elected  and  qualifying  from  such 
district." 

Mr.  Moore  —  Mr.  Chairman,  in  support  of  these  different  correc- 
tions in  section  2  of  this  proposed  amendment,  it  has  seemed  to  me 
that  if  this  amendment  is  to  pass  it  is  unwise  to  change  the  number 


August  i.]  CONSTITUTIONAL  CONVENTION.  13 

of  district  delegates  until  we  know,  at  least,  what  shall  be  the 
apportionment  of  the  Senate  districts  of  the  State.  As  to  the  other 
amendment  on  page  3,  after  the  word  "  necessary,"  it  would  seem 
to  be  just  as  much  a  part  of  our  duty  to  give  the  Convention  the 
power  to  fix  the  compensation  of  its  officers,  employes  and  assistants 
as  it  is  that  it  shall  appoint  such  officers,  employes  and  assistants. 

In  reference  to  the  matter  on  page  4,  it  has  seemed  to  me  that 
this  is  an  unfair  proposition  for  whatever  party  may  control  the  Con- 
vention twenty  years  from  now.  It  seems  to  me  that  the  clause 
should  be  so  framed  that  the  political  machinery  should  be  left  as 
the  people  declared  at  the  polls.  This  amendment,  as  it  is  now  pro- 
posed by  the  mover,  fixes  it  so  that  any  vacancy,  whether  of  a 
delegate-at-large  or  a  district  delegate,  shall  be  filled  by  a  majority 
of  all  the  delegates  elected  to  the  Convention.  My  amendment 
proposes  that  it  shall  leave  the  political  aspect  of  the  case  exactly 
as  the  people  left  it,  and  if  the  vacancy  is  occasioned  by  the  death 
of  a  delegate-at-large,  then  all  the  delegates  may  fill  such  vacancy, 
but,  if  it  is  occasioned  by  the  death  of  a  district  delegate,  then  the 
majority  of  the  district  delegates  may  fill  the  vacancy.  That  leaves 
the  political  complexion  of  such  a  proposed  amendment  exactly 
where  the  people  left  it;  and  for  those  reasons  I  move  the  adoption 
of  these  amendments. 

Mr.  Deyo  —  Mr.  Chairman,  I  wish  to  call  the  attention  of  the 
gentleman  who  has  charge  of  this  matter  to  line  19  on  page  2,  and 
ask  him  if  it  is  not  a  misprint? 

Mr.  Marshall  —  It  is,  and  we  have  already  corrected  it. 

Mr.  Abbott  —  Mr.  Chairman,  if  the  gentleman  from  Onondaga 
will  permit  me,  I  would  like  to  ask  him  to  explain  just  what  these 
various  subdivisions  mean.  As  I  understood  his  explanation  of  the 
second  subdivision,  it  is  that  if  a  million  votes  were  cast  for  mem- 
bers of  Assembly,  501,000  cast  for  the  Constitution,  in  favor  of  it, 
that  500,000  of  them  must  be  in  favor —  501,000  votes  cast,  500,000 
must  be  in  favor;  in  other  words,  one-half  of  all  the  votes  cast  for 
members  of  Assembly. 

Mr.  Marshall  —  My  idea  is  that,  if  one  million  votes  are  cast  for 
members  of  Assembly,  if  501,000  votes,  or  500,001  votes,  are  cast 
affirmatively  on  the  proposed  amendment,  then  it  is  to  be  adopted, 
because  a  majority  have  voted  in  favor  of  it. 

Mr.  Abbott  —  If  501 ,000  are  cast  affirmatively  and  i  ,000  in  the 
negative 

Mr.  Marshall  —  I  do  not  care  how  many  there  are  in  the  negative, 


14  REVISED  RECORD.  [Wednesday, 

Mr.  Abbott  —  Then  it  requires  501,000.  Now,  if  750,000  votes 
are  cast,  it  requires  how  many? 

Mr.  Marshall  —  If  750,000  votes  are  cast  upon  the  subject  of 
whether  or  not  the  amendment  shall  be  adopted,  the  aggregate  of 
votes  being  750,000  on  the  subject,  then  a  majority  of  the  votes 
cast  upon  the  question  of  the  amendment  would  have  to  be 
affirmative  votes. 

Mr.  Abbott  —  So  that  in  case  501,000  are  cast,  there  must  be 
500,000  affirmative  votes;  while  if  750,000  votes  are  cast  there  need 
be  but  376,000? 

Mr.  Marshall  —  Certainly. 

Mr.  Abbott  —  Mr.  Chairman,  in  order  to  bring  the  matter  before 
the  committee,  I  move  as  an  amendment  that  we  strike  out,  on 
page  2,  line  14,  and  following,  "by  the  affirmative  votes  of  a 
majority  of  all  the  qualified  electors  who  shall  at  the  same  election 
vote  for  members  of  the  Assembly;  or,  third,"  —  leaving  the  last 
alternative.  It  seems  to  me  we  do  not  want  the  second  one  there. 
In  other  words,  we  do  not  want  to  require  500,000  votes,  where 
only  501,000  are  cast,  on  the  affirmative  of  the  proposition. 

Mr.  Marshall  —  Mr.  Chairman,  the  difficulty  of  the  proposition  of 
the  gentleman  from  St.  Lawrence,  if  his  amendment  were  carried, 
is  this:  That  if  he  would  require  a  vote  of  three-fourths  of  all  the 
people  voting  at  the  election  for  members  of  Assembly  as  a  condi- 
tion of  the  adoption  of  an  amendment  to  the  Constitution,  the 
amendment  could  not  be  carried  in  the  case  supposed  by  me  if 
501,000  people  should  vote  in  favor  of  the  amendment,  although 
they  constituted  a  majority  of  all  the  people  voting  at  the  election. 
The  provision  is  intended  as  a  safeguard.  Let  me  make  myself 
clear.  Five  hundred  and  one  thousand  out  of  a  total  of  one  million 
votes  would  not  be  three-quarters  of  all  the  people  voting  for  mem- 
bers of  Assembly  at  that  election.  Now,  it  might  happen,  as  some- 
times happens,  that  there  is  practically  no  opposition  to  the  pro- 
posed amendment.  Now,  the  amendment  which,  on  the  state  of 
facts  supposed,  receives  501,000  favorable  votes,  should  be  adopted. 
If  you  strike  out  that  second  alternative,  which  you  have  just  sug- 
gested that  it  is  desirable  to  strike  out,  you  would  require  750,000 
votes  to  be  cast  upon  the  proposed  amendment,  and  the  501,000 
people  who  might  at  that  election  vote  in  favor  of  the  amendment 
would  not  accomplish  that  purpose,  although  they  would  constitute 
a  majority  of  all  the  voters  voting  at  the  election.  That,  of  course, 
would  be  an  injustice,  and  would  render  ineffectual  the  will  of  the 
people.  So  that  the  purpose  of  the  committee  has  been  to  allow  a 


August  i.]  CONSTITUTIONAL  CONVENTION.  15 

majority  of  the  people  voting  at  the  election  to  control  in  any  event; 
but  if  it  is  should  happen  that  there  should  be  less  than  a  total  vote 
of  the  people  cast  upon  a  proposed  amendment;  if  only  three- 
fourths  of  the  people  vote  upon  the  subject  it  would  be  sufficient  if  a 
majority  of  those  voting  upon  that  subject,  so  long  as  they  shall  be 
three-fourths  of  all  the  people  voting  for  members  of  Assembly, 
should  cast  their  votes  in  the  affirmative. 

Mr.  Abbott  —  It  seems  to  me  that  the  inconsistency  comes  from 
requiring  more  votes  affirmatively,  where  there  is  no  opposition, 
than  where  there  is  opposition;  that  is  all. 

The  Chairman  —  Do  I  understand  the  gentleman  from  St.  Law- 
rence to  have  offered  an  amendment? 

Mr.  Abbott  —  I  do  not  care  to  offer  any  amendment,  Mr.  Chair- 
man. I  simply  suggested  the  matter  to  the  good  sense  of  the  chair- 
man of  the  committee. 

Mr.  Spencer  —  Mr.  Chairman,  if  my  recollection  serves  me 
right,  there  is  a  misprint  in  line  17  of  page  2,  in  relation  to  the  third 
alternative.  I  have  not  my  memorandum  with  me,  but,  as  I  recol- 
lect that  provision,  as' finally  agreed  upon  by  the  committee,  it  read 
as  follows: 

"  Third,  provided  three-fourths  of  such  qualified  electors  voting 
at  such  election  shall  vote  thereon  by  the  affirmative  votes  of  a 
majority  of  the  electors  voting  thereon,"  etc.  As  I  recollect  it,  those 
words  were  there,  and  possibly  were  left  out  by  the  typewriter. 
I  suggest  that  they  be  inserted  there,  if,  in  the  judgment  of  the 
committee,  it  makes  the  sense  more  apparent.  I  offer  that  as  an 
amendment. 

The  Chairman  —  Does  the  gentleman  offer  that  as  an 
amendment? 

Mr.  Spencer  —  I  do,  sir. 

The  Chairman  —  Will  the  gentleman  please  put  it  in  writing  and 
send  it  to  the  desk? 

Mr.  Spencer  —  I  will  say,  in  connection  with  this  proposed 
amendment,  if  I  may  be  permitted  by  the  Chair,  that  it  frequently 
happens  when  matters  of  this  kind  come  up  before  the  people,  as 
has  been  alluded  to  by  the  chairman  of  the  committee,  that  a  great 
many  of  the  people  take  but  little  or  no  interest  in  the  matter;  and 
it  very  frequently  happens  that  those  who  desire  to  vote  against 
the  proposition  are  not  able  to  obtain  a  ballot  to  use  at  the  polls. 
These  provisions,  requiring  a  majority  vote  of  the  electors  voting 
at  the  election,  were  intended  to  cure  or  prevent  that  evil.  It  might 


T6  REVISED  RECORD.  [Wednesday, 

happen,  and  it  has  happened,  I  think,  in  the  history  of  this  State, 
that  a  class  of  persons  interested  in  carrying  through  a  constitu- 
tional amendment  would  see  to  it  that  their  friends  voted  for  that 
proposition.  They  were  organized;  they  had  a  material  interest 
back  of  the  constitutional  amendment.  I  think  the  memory  of  the 
gentlemen  present  in  this  committee  will  be  sufficient  to  inform 
them  of  events  of  that  character  having  happened  in  this  State. 
Those  who  would  naturally  be  opposed  to  such  an  amendment, 
having  no  particular  interest  or  matter  at  stake,  and  not  being 
united  or  organized,  the  question  goes  by  default;  a  small  propor- 
tion of  the  voters  take  part  in  voting  upon  the  proposition,  and  it 
is  carried  by  the  votes  of  a  very  few  people.  In  the  judgment  of 
the  committee  such  an  event  as  that  would  be  disastrous  and  should 
be  in  some  way  prevented,  and  this  provision  was  inserted  for  that 
purpose. 

Mr.  H.  A.  Clark  —  I  am  heartily  in  accord  with  the  provisions  of 
this  amendment,  but  I  wish  to  make  a  motion  to  amend  the  propo- 
sition in  one  respect  —  at  page  3,  in  line  7,  after  the  word  "  ensu- 
ing "  insert  the  word  "  general." 

The  Chairman  —  I  will  call  the  gentleman's  attention  to  the  fact 
that  there  are  two  amendments  now  pending.  No  more  are  in 
order  at  present. 

Mr.  Barhite  —  I  cannot  say  that  I  am  fully  in  accord  with  the 
conditions  which  the  committee  has  named  under  which  the  amend- 
ments may  be  approved  by  the  people.  I  am  not  in  accord  with 
it,  from  the  fact,  as  it  seems  to  me,  that  two  different  standards 
have  been  named,  one  which  must  be  met  at  a  special  election,  and 
another  at  a  general  election.  Now,  this  proposed  amendment  pro- 
vides that,  first,  the  approval  of  the  people  shall  be  exp-essed  at  a 
special  election  by  the  affirmative  votes  of  a  majority  of  the  electors 
qualified  to  vote  for  members  of  the  Legislature  voting  thereon. 
If  I  understand  that  provision,  then,  if  three  men  who  are  oualified 
to  vote  for  a  member  of  Assembly  should  vote  upon  a  proposed 
amendment,  and,  if  two  of  the  three  should  vote  in  favor  and  one 
against,  the  amendment  would  be  carried.  Now,  I  think  it  is  the 
experience  of  every  person  who  has  had  anything  to  do  with  either 
a  general  or  a  special  election,  that  it  is  more  difficult,  under 
ordinary  circumstance,  to  get  the  will  of  the  people  at  a  special 
election  than  it  is  at  a  general  election,  unless  there  is  some  question 
up  in  which  the  people  are  generally  interested.  It  is  the  experi- 
ence, and,  I  think  that  the  figures  read  by  the  gentleman  of  the 
committee  show  this,  that  the  votes  upon  the  amendments  to  the 


August  I.]  CONSTITUTIONAL  CONVENTION.  17 

Constitution  fall  far  behind  the  votes  for  the  elective  officers  of  the 
State.  The  great  mass  of  the  people  of  ihe  State  do  not  seem  to  be 
so  thoroughly  interested  as  to  what  shall  become  part  of  the  organic 
law  as  they  do  as  to  who  shall  represent  them  in  the  Senate  or 
Assembly,  as  to  who  shall  be  Governor,  or  even  county  judge  of 
their  own  county.  For  this  reason,  sir,  I  do  not  believe  that  the 
first  condition  should  be  allowed  to  stand  in  the  form  in  which  it 
has  been  written.  I  do  not  believe  that  an  amendment  should  go 
into  our  Constitution  which  would  permit  a  small  number  of  the 
electors  of  the  State  to  stamp  it  with  approval  and  make  it  a  part 
of  the  organic  law  of  the  State.  I  thoroughly  believe  that  there 
should  be  a  requirement  which  should  take  the  votes  of  at  least 
one-half  or  two-thirds  of  the  electors  who  are  qualified  to  vote  for 
members  of  the  Assembly,  expressed  either  for  or  against  the 
proposed  amendment,  to  constitute  a  decision.  Now,  the  second 
condition  provides,  if  I  understand  it  correctly,  that  at  a  general 
election  it  requires  an  affirmative  vote  of  a  majority  of  all  the  quali- 
fied electors  who  shall  vote  for  members  of  the  Assembly.  Now, 
under  this  proposed  amendment,  we  have  the  condition  that  at  a 
special  election  it  would  be  possible  for  three  men  to  vote  upon 
an  amendment  and  make  it  part  of  the  organic  law  of  the  State, 
while  at  a  general  election  it  might  require  the  votes  of  500,000 
persons  to  carry  the  amendment.  It  is  a  fact,  as  I  said  before,  that 
the  great  mass  of  the  people  of  the  State  of  New  York  do  not  take 
the  interest  in  amendments  to  the  Constitution  that  they  should 
take,  and  I  say,  with  some  confidence,  that,  intelligent  as  our 
people  are,  as  proud  as  we  are  of  their  education  and  their  refine- 
ment and  their  interest  in  the  affairs  of  the  State,  that  you  can 
to-day  find  thousands  of  people  in  the  State  who  hardly  know  the 
fact  that  a  Constitutional  Convention  is  now  in  progress;  or,  if 
they  do  know  that  fact  simply,  can  scarcely  tell  you  of  a  question 
that  has  been  brought  up  for  consideration  here.  I  desire,  sir,  at 
the  proper  time,  after  the  amendments  already  offered  are  dis- 
posed of,  to  offer  an  amendment,  which,  it  seems  to  me,  will  correct 
the  evil  or  the  difficulty  of  which  I  have  spoken. 

Mr.  Vedder  —  It  may  be,  Mr.  Chairman,  hypercritical,  but  in 
the  second  proposition  here,  page  2,  it  reads:  "Second,  if  submitted 
at  a  general  election,  by  the  affirmative  votes  of  a  majority  of  all 
the  qualified  electors  who  shall,  at  the  same  election,  vote  for 
members  of  the  Assembly "  —  commencing  at  line  14,  it  would 
seem  to  read  so  that  you  would  have  to  ascertain  in  some  way  who 
voted  for  members  of  Assembly,  and  that,  in  order  to  pass  this 


18  REVISED  RECORD.  [Wednesday, 

amendment,  you  would  have  to  have  a  majority  of  those  who  did 
vote  for  members  of  Assembly  —  the  same  voters.  That  is  the 
way  it  reads.  It  seems  to  me,  Mr.  Chairman,  entirely  clear  that 
it  ought  to  read  "  by  the  affirmative  vote  of  a  majority  of  all  the 
electors  who  are  qualified  to  vote  for  members  of  the  Legislature." 

Again,  on  page  3,  is  the  same  criticism,  if  it  be  a  criticism.  Com- 
mencing on  line  I  — "  shall  be  decided  by  the  electors  qualified 
to  vote  for  members  of  the  Legislature,  and  in  case  a  majority  of 
the  electors  so  qualified,  voting  at  such  election  for  members  of  the 
Assembly  " —  it  would  seem  to  be  the  strict  construction  that  you 
would  have  to  find  who  voted  for  members  of  the  Assembly,  and 
would  have  to  have  a  majority  of  those  who  so  voted.  I  simply 
throw  out  these  suggestions  to  see  if  some  other  language  could 
not  be  employed,  as  I  have  suggested,  so  that  it  would  be  clearer 
to  the  ordinary  mind. 

Mr.  Mantanye  —  I  am  very  much  in  accord  with  the  general 
sentiment  and  principle  of  this  proposed  amendment,  but  it  has 
occurred  to  me,  as  has  been  suggested  by  the  gentleman  from  Mon- 
roe (Mr.  Barhite),  that  there  should  be,  to  make  this  perfect,  the 
same  provision  for  the  adoption  of  a  proposed  constitutional 
amendment  at  a  special  election  as  at  a  general  election.  We  have 
had  some  experience  in  the  past,  in  regard  to  special  elections,  and 
know  how  difficult  it  is  on  such  occasions  to  get  the  voters  out, 
even  when  it  is  on  the  electing  of  some  officers,  as,  for  instance, 
in  regard  to  the  Constitutional  Convention  of  1867.  The  delegates 
to  that  Convention,  if  I  remember,  were  elected  at  a  special  election. 
Therefore,  I  think  that  at  the  proper  time  an  amendment  should 
be  made  to  this  section  which  shall  make  the  same  provision,  with 
regard  to  a  special  election,  as  to  the  number  of  votes  necessary 
for  adoption,  that  would  be  required  at  a  general  election. 

I  had  also  noticed  the  peculiarity  of  the  wording  that  has  been 
suggested  by  the  gentleman  from  Cattaraugus  (Mr.  Vedder)  —  that 
the  meaning  of  these  words  would  seem  to  require  a  majority  of  the 
same  voters  who  had  voted  for  members  of  Assembly,  which  must, 
by  their  affirmative  votes,  declare  in  favor  of  the  amendment  to 
secure  its  adoption.  But  it  seems  to  me  that  the  suggestion  that 
he  makes,  as  to  the  wording,  would  not  better  it  at  all;  that  the 
only  change  that  would  be  necessary  would  be  to  insert  in 
line  15,  after  the  word  "of,"  the  words  "a  number  equal  to,"  so 
that  it  would  read:  "Second,  if  submitted  at  a  general  election  by 
the  affirmative  votes  of  a  number  equal  to  a  majority  of  all  the 
qualified  electors  who  shall,  at  the  same  election,  vote  for  members 
of  the  Assembly."  And  that  would  also  be  the  wording,  which 


August  i.]  CONSTITUTIONAL  CONVENTION.  19 

should  be  inserted,  as  it  seems  to  me,  in  line  3,  on  page  3,  so  that 
that  would  read,  "  and  in  case  a  number  equal  to  a  majority  of  the 
electors  so  qualified,"  etc.  At  the  proper  time  I  desire  to  introduce 
amendments  which  may  make  these  changes,  and  which  do  not,  as 
I  see,  affect  the  general  principle  of  the  proposed  amendment,  as 
reported  by  the  gentleman  from  Onondaga.  There  being  two 
amendments,  I  suppose  it  is  now  out  of  order  to  introduce  these. 
If  this  committee  should  rise  and  report,  and  ask  leave  to  sit  again 
for  the  purpose  of  having  all  these  amendments  referred  back  to 
them  and  acted  upon  by  them,  I  desire,  before  it  is  done,  to  have 
these  amendments  formally  introduced  and  put  in  shape  for  that 
purpose. 

Mr.  Durfee  —  It  occurs  to  me  that  the  difficulty  that  has  been 
suggested  by  several  gentlemen,  and  which  has  been  the  subject 
of  the  amendments  that  have  been  proposed,  may  be,  to  a  large 
extent,  obviated  by  referring  to  the  provision  concerning  the  general 
election  next  preceding  that  at  which  the  amendments  are  sub- 
mitted, and  requiring  such  a  proportion  in  number  as  may  be 
deemed  advisable  of  the  electors  who  voted  at  the  next  preceding 
general  election  to  vote  upon  the  subject  of.  the  proposed  amend- 
ment. I  should  offer  an  amendment  of  that  character,  Mr.  Chair- 
man, if  it  were  not  that  there  are  already  two  amendments  pending; 
and  it  may  very  probably  happen  that  the  matter  will  be  referred 
back  to  the  committee  to  formulate  some  language  in  this  connec- 
tion which  will  meet  the  views  that  have  been  expressed  here  in  this 
committee.  I,  therefore,  simply  make  the  suggestion  that  such 
attention  may  be  given  to  the  subject  as  the  committee,  in  that 
event,  may  deem  proper. 

Mr.  H.  A.  Clark  —  On  page  3  of  this  proposed  amendment  the 
committee  have  not  followed  the  general  expressions  of  the  rest 
of  the  amendment.  In  line  7  they  have  used  the  words  "  next  ensu- 
ing election  at  which  any  members  of  the  Legislature  shall  be 
chosen,"  while,  in  the  other  parts  of  the  amendment,  they  have 
always  used  the  words  "  special  election  "  or  "  general  election." 
In  this  particular  case  they,  undoubtedly,  mean  "  at  the  next 
ensuing  general  election "  at  which  members  of  the  Legislature 
shall  be  chosen;  and,  I  think,  it  would  be  quite  important  that  it 
should  be  a  general  election,  because  it  would  be  very  improper  to 
submit  this  question  at  a  special  election,  when  only  one  member 
of  the  Legislature  might  be  chosen  to  fill  a  vacancy.  Under  the 
language,  as  it  now  stands,  a  constitutional  amendment,  I  think, 
might  be  adopted  at  a  special  election  called  for  the  purpose  of 


20  REVISED  RECORD.  [Wednesday, 

choosing  one  member  of  Assembly  to  fill  a  vacancy.  At  a  proper 
time  I  shall  propose  that  that  be  amended  by  inserting  the  word 
"  general  "  before  the  word  "  election,"  and  by  striking  out  the  word 
"  any "  before  the  word  "  members,"  so  that  it  will  read,  "  at  a 
general  election,"  when  members  of  the  Assembly  are  chosen. 

Mr.  Dean  —  This  proposed  amendment  has  drifted  out  into  the 
domain  of  legislation  to  a  considerable  extent.  There  seems  to  be 
a  very  general  disposition  to  amend  the  proposition  of  the  com- 
mittee, and,  as  several  gentlemen  have  proposed  amendments,  which 
are  not  properly  before  the  committee  at  this  time,  and  it  seems 
impossible  to  reach  any  result,  I  move  that  the  committee  rise  and 
report  progress,  and  ask  leave  to  sit  again. 

Mr.  C.  B.  McLaughlin  —  I  hope  this  motion  will  not  prevail. 

The  Chairman  put  the  question  on  the  motion  of  Mr.  Dean, 
and  it  was  determined  in  the  negative. 

The  Chairman  —  What  is  the  further  pleasure  of  the  committee? 

Mr.  Moore  —  I  have  been  asked  to  explain  an  amendment  which 
I  proposed,  as  some  of  the  members  did  not  fully  understand  it. 
If  they  will  turn  to  page  4,  I  will  try  to  make  that  amendment  plain 
to  them.  My  idea  was,  in  case  of  a  vacancy  by  death,  resignation  or 
other  cause  — 

The  Chairman  —  The  question  before  the  House  is  not  upon  your 
amendment,  but  upon  Mr.  Spencer's. 

Mr.  Moore  —  Exactly;  but  I  beg  your  pardon,  Mr.  Chairman  — 
the  Chairman  asked  for  the  further  pleasure  of  the  Convention  and 
I  got  the  floor. 

The  Chairman  —  I  think  the  gentleman  is  out  of  order,  unless 
he  is  speaking  to  Mr.  Spencer's  amendment.  The  question  is  upon 
Mr.  Spencer's  amendment.  Is  there  anything  further  to  be  said 
upon  that  subject? 

Mr.  Moore  —  I  have  not  heard  Mr.  Spencer's  amendment  yet. 
I  would  like  to  know  what  it  is. 

The  Chairman  —  Will  the  Secretary  read  it  again  ? 

The  Secretary  read  the  amendment  offered  by  Mr.  Spencer  as 
follows:  In  line  17  of  page  2,  insert  the  words  "voting  at  said 
election  "  after  the  word  "  electors." 

Mr.  Moore  —  I  would  like  very  much  to  have  Mr.  Spencer 
explain  what  he  means  by  that.  It  seems  to  me,  at  least,  to  be  a 
good  deal  tautological,  and  I  have  not  quite  understanding  enough 


August  i.]  CONSTITUTIONAL  CONVENTION.  21 

yet  to  get  at  just  what  he  means  by  it.  I  would  like  to  have  him 
explain. 

The  Chairman  —  Will  Mr.  Spencer  try  to  make  this  plain  to 
Mr.  Moore? 

Mr.  Spencer  —  Mr.  Chairman,  I  believe  that  you  have  set  too 
difficult  a  task  for  me.  My  proposition  was,  however,  to  insert  in 
line  17,  after  the  word  "electors,"  the  words  "voting  at  said  elec- 
tion." The  inference  is,  from  the  words  "  qualified  electors,"  that 
it  does  refer  to  those  voting  for  members  of  Assembly  specified 
in  the  alternative  proceeding.  The  subject,  as  I  recall  it,  was  up 
before  the  committee,  and,  as  I  remember  it,  those  words  were 
there,  and  that  is  why  I  put  them  there,  so  that  it  might  be  definitely 
determined  who  those  qualified  electors  were,  how  many  there  were, 
that  it  might  not  be  left  to  the  registry  list  or  any  other  source  of 
information,  but  that  it  might  be  determined  by  the  number  of 
electors  voting  —  actually  voting  —  at  the  election. 

Mr.  Spencer  then  read  the  entire  clause,  as  amended  by  his 
proposition. 

Mr.  Alvord  —  I  desire  to  ask  the  gentleman  from  Clinton 
whether  he  does  not  find  himself  rather  invidious  in  asking  that 
the  election,  in  case  of  a  vacancy  in  the  district  delegation,  shall 
be  held  by  the  district,  but  the  election,  in  case  of  a  vacancy  in  the 
fifteen,  shall  be  made  by  the  entire  Convention?  Why  not  also 
say,  as  seems  to  me  proper,  to  carry  out  his  views,  in  case  of  a 
vacancy  in  the  fifteen,  the  fourteen  left  should  be  entitled  to  fill 
the  vacancy? 

Mr.  Moore  —  I  will  say  to  the  gentleman  from  Onondaga  that 
it  was  my  desire  to  leave  the  Convention,  as  the  people  would  make 
it  at  that  time,  and  by  my  amendment  that  is  accomplished.  Let 
us  take  a  case,  for  instance,  as  a  matter  of  information  —  I  have 
no  desire  to  debate  it  twice  —  and  that  is,  supposing  that  our  friends, 
the  enemy,  had  carried  the  election  last  fall,  under  this  provision. 
Suppose  that  I  had,  as  a  district  delegate,  died  in  the  meantime,  or, 
suppose  that  some  other  gentleman  had  cast  off  the  mortal  coil,  as 
a  Republican;  that  our  friends,  the  enemy,  had  a  majority  in  the 
Convention.  They  would  immediately  proceed  to  elect  a  Demo- 
crat in  his  place,  or  vice  versa;  that  is,  assuming  that  he  was  elected 
as  a  district  delegate.  My  idea  in  introducing  this  amendment,  I 
may  state  to  the  honorable  gentleman  for  his  information,  was 
that  the  Convention  at  that  time,  in  case  of  a  vacancy  by  death, 
resignation  or  any  other  cause,  should  be  filled  so  as  to  leave  the 
political  complexion  of  the  Convention  exactly  as  it  was  left  by 


22  REVISED  RECORD.  [Wednesday, 

the  people  at  the  ballot-box;  and  this  proposition,  as  I  have 
amended  it,  will  do  that.  But,  as  it  stands  now,  the  party  in 
power  would  have  the  right  to  fill  any  vacancy  with  men  of  their 
own  ilk;  and  that,  whether  they  were  Republicans,  Democrats, 
Populists,  Female  Suffragists  or  Prohibitionists,  would  be  mani- 
festly unfair,  in  my  judgment. 

Mr.  Alvord  —  I  hope  that  the  gentleman  will  not  die  during  the 
present  Convention,  for  we  should  have  to  lose  probably  a  day  or 
two  to  see  him  decently  buried.  But,  sir,  I  desire  to  say  that  he 
has  not  given  any  explanation  to  my  proposition.  Supposing,  for 
instance,  the  district  delegation  are  largely  in  the  majority  and 
swallow  up  the  fifteen  who  have  been  elected  by  the  people  at  large. 
The  people  at  large  elected  the  fifteen.  Should  they  not  have  the 
same  right  to  fill  a  vacancy  among  themselves,  without  the  interpo- 
sition of  the  Convention  that  his  proposed  amendment  gives  to 
district  delegates  to  fill  their  vacancies?  In  that  way  only  can  we 
preserve  the  political  composition  of  the  "parties.  That  was  the 
question  I  asked  him,  and  a  rambling  answer,  without  getting  to  the 
point,  was  given  by  the  gentleman  from  Clinton. 

Mr.  Marshall  —  There  are  a  number  of  amendments  now  before 
the  House  for  consideration,  and  it  will  probably  be  necessary  for 
these  matters  to  be  referred  again  to  the  committee  for  considera- 
tion, although  it  is  well  enough  to  have  some  of  the  matters  dis- 
posed of  which  have  been  presented  this  evening,  so  as  to  eliminate 
some  of  the  questions  from  the  consideration  that  we  are  to  give 
this  article.  The  proposed  amendment  of  Mr.  Spencer  is  really  the 
result  of  the  conference  of  the  committee.  Through  some  inadvert- 
ence, the  words  which  he  proposes  have  been  omitted  from  the 
printed  proposed  amendment,  and  I  am  very  anxious  to  have  that 
amendment  adopted  by  the  House.  I  have  considered  the  amend- 
ments which  have  been  proposed  by  others,  and  also  the  criticisms 
that  have  been  made  by  Mr.  Vedder  and  other  gentlemen.  I  would 
explain  that  it  was  the  purpose  of  the  committee  to  retain,  as  nearly 
as  possible,  the  language  of  the  old  Constitution,  and  there  the 
provision  contains  the  words  which  are  descriptive  of  the  electors 
who  are  to  vote  upon  constitutional  amendments  — "  qualified  to 
vote  for  members  of  the  Legislature."  I  think  those  words  have' 
really  no  longer  any  useful  purpose  to  perform.  They  appear  sev- 
eral times  in  this  article,  and,  particularly,  at  line  13;  and  it  was  by 
reason  of  the  continuance  of  those  words,  perhaps,  that  some  of 
the  difficulties  of  interpretation  result  which  have  been  suggested. 
For  the  purpose  of  meeting  these  different  suggestions,  I  desire  to 


August  i.]  CONSTITUTIONAL  CONVENTION.  23 

propose  an  amendment,  or  to  announce  that  1  intend,  at  the  proper 
time,  to  propose  an  amendment,  which  will,  I  think,  cover  all  the 
difficulties  which  have  been  suggested.  That  amendment  will  be 
as  follows: 

Strike  out  all  of  line  13  on  page  2,  after  the  word  "electors," 
and  strike  out  lines  14  to  18,  inclusive,  on  the  same  page,  and  the 
words  "voting  thereon"  on  line  19,  page  2,  and  insert  in  place 
thereof  the  following  words:  "  Voting  thereon;  second,  if  submitted 
at  a  general  election,  by  the  affirmative  votes  of  a  majority  of  all 
the  electors  voting  at  such  election;  or,  third,  provided  that  three- 
fourths  of  all  the  electors  voting  at  such  election  shall  vote  thereon, 
by  the  affirmative  votes  of  a  majority  of  such  electors  voting 
thereon."  In  lines  3  and  4,  page  3,  strike  out  the  words,  "  so  quali- 
fied, voting  at  such  election  for  members  of  the  Assembly,"  and 
insert  in  place  thereof  the  words,  "  voting  at  such  election."  The 
effect  of  that  will  be  that  we  merely  ask  that  there  shall  be  either  a 
majority  of  all  the  electors  voting  at  said  election;  or,  if  three-fourths 
of  all  the  electors  voting  at  such  election  vote  thereon,  a  majority  of 
such  voters. 

Mr.  Marshall,  upon  request,  then  repeated  his  amendment,  to 
give  members  an  opportunity  to  take  it  down  in  writing. 

Mr.  W.  H.  Steele  —  I  desire  to  offer  the  following  amendment,  if 
in  order  at  this  time. 

The  Chairman  —  There  are  two  amendments  already  pending. 

Mr.  Mereness —  There  seems  to  be  no  objection  at  all  to 
Mr.  Spencer's  amendment,  and,  I  think,  we  ought  to  take  hold  of 
that  and  get  it  out  of  the  way,  and  get  ready  for  some  other 
amendment.  I  move  that  a  vote  be  taken  on  that  — 

Mr.  Cassidy  —  I  move  that  the  committee  do  now  rise,  report 
progress  and  ask  leave  to  sit  again. 

The  Chairman  put  the  question  on  the  motion  of  Mr.  Cassidy, 
and  it  was  determined  in  the  negative,  by  a  rising  vote,  58  to  38. 

Mr.  Vedder  —  I  want  to  make  a  suggestion  in  the  committee  to 
dispose  of  this  matter.  The  third  proposition  of  Mr.  Marshall's 
does  not,  1  think,  read  as  smoothly  as  it  should.  I  think,  if  it 
should  go  back  to  the  committee,  that  he  could  iron  it  out  a  little 
smoother  than  it  now  is,  or  as  he  suggested  it.  I  would  suggest 
this,  and,  if  it  be  parliamentary,  I  would  ask  unanimous  consent 
that  it  be  clone  —  that  all  amendments  that  members  desire  to 
submit  here  in  the  Committee  of  the  Whole,  be  submitted;  that  the 
committee  then  rise  and  report  progress  on  the  proposed  amend- 


24  REVISED  RECORD.  [Wednesday, 

ment,  send  it  back  to  the  committee,  with  all  the  amendments, 
retaining  its  place  on  general  orders;  and  they  can  report  it  back, 
after  fixing  it  up  in  the  committee,  much  better  than  we  can  here. 

Mr.  Marshall  —  I  have  no  objection  to  that  course;  but  I  think 
that  some  of  the  amendments  proposed  here  this  evening,  as  for 
instance,  that  of  Mr.  Spencer,  might  be  disposed  of,  and  we  can 
also  take  a  vote  on  Mr.  Moore's  amendment  and  dispose  of  that. 

Mr.  Vedder  —  I  suppose  that  an  amendment  of  different  sections 
of  the  article  would  not  be  violating  the  rule  that  only  two  amend- 
ments can  be  entertained  at  the  same  time.  I  would  ask  the  gentle- 
man from  Onondaga  whether  there  could  be  different  amendments 
upon  different  sections,  under  the  head  of  amendments  generally, 
in  order,  without  violating  the  rule  that  we  can  have  no  amend- 
ment to  an  amendment.  If  that  be  true,  then  they  can  suggest 
all  these  amendments,  let  them  go  into  the  committee  and  let  the 
committee  consider  them. 

Mr.  Cochran  —  A  point  of  order,  Mr.  Chairman.  I  think  the 
Chairman  is  here  to  decide  all  points  of  order  and  all  questions  of 
parliamentary  practice,  without  referring  to  any  gentleman  on  the 
floor  as  authority. 

Mr.  Alvord  —  Do  I  understand  that  I  can  answer  the  gentleman 
from  Cattaraugus? 

Mr.  Vedder  —  I  asked  him  a  question. 

The  Chairman  —  Mr.  Alvord  has  the  floor. 

Mr.  Alvord  —  I  desire  to  say  to  the  gentleman  from  Cattaraugus 
that  I  do  not  think  that  any  more  than  one  amendment  to  an 
amendment  can  be  at  any  time  pressed  at  any  stage  of  the  proceed- 
ings. I  desire  to  say  to  members  of  the  committee  here  present 
that  it  seems  to  me  that  we  are  in  an  interminable  dispute  here, 
which  can  be  very  well  obviated  by  rising  and  reporting  progress 
and  asking  leave  to  sit  again,  and  then  quietly  moving  that  the 
matter  be  referred  back  to  the  committee,  and  the  amendments, 
also,  at  the  same  time;  and  then  gentlemen  who  have  amendments 
who  desire  to  perfect  this  article,  can  hand  their  amendments 
quietly  to  the  committee,  and  they  can  look  over  them  all  at  their 
leisure,  and  come  in  with,  as  far  as  possible,  a  perfected  report. 

Under  these  circumstances,  and,  thinking  this  is  the  only  way 
out  of  the  difficulty  —  hoping  that  I  may  not  follow  my  predeces- 
sor, who  was  beaten,  upon  my  motion  —  I  move  the  committee  do 
now  rise,  report  progress  and  ask  leave  to  sit  again. 

The  Chairman  then  put  the  question  on  Mr.  Alvord's  motion, 


August  i.]  CONSTITUTIONAL  CONVENTION.  25 

which  was  determined  in  the  affirmative,  by  a  standing  vote,  59 
to  40. 

The  President  resumed  the  chair. 

Mr.  Peck  —  The  Committee  of  the  Whole  have  had  under  con- 
sideration the  proposed  constitutional  amendment,  printed  No.  374; 
have  made  some  progress  in  the  same  —  several  amendments 
thereto  are  pending  —  they  now  report  progress  and  ask  leave  to 
sit  again. 

The  President  put  the  question  on  agreeing  to  the  report  of  the 
Committee  of  the  Whole,  which  was  determined  in  the  affirmative. 

Mr.  Marshall  —  I  ask  that  the  various  amendments  which  have 
been  suggested,  and  changes  that  are  made  now  to  this  proposed 
amendment,  shall  be  submitted  to  the  committee  and  printed  for 
consideration  hereafter,  and  referred  back  to  the  Committee  on 
Future  Amendments,  keeping  its  place  on  the  general  orders. 

The  President  —  Mr.  Marshall  moves  that  all  the  amendments 
that  are  offered  and  are  ready  to  be  offered  be  printed,  and  that 
the  amendment  be  recommitted,  with  such  amendments,  to  the 
Committee  on  Constitutional  Amendments,  retaining  its  place  on 
general  orders. 

Mr.  Tekulsky  —  I  cannot  understand  why  those  amendments 
which  are  offered  here  shall  be  printed.  I  think  the  course  that 
has  been  suggested  here  is  the  right  one,  that  the  amendments 
which  are  proposed  shall  be  given  to  the  Committee  on  Future 
Amendments,  letting  them  decide  upon  and  fix  up  the  article  in 
its  proper  way,  and  then  have  it  printed;  and  not  have  these  separ- 
ate amendments  come  in  here  again,  to  vote  upon  those  same  things 
over  again.  The  committee  see  the  defects  of  this  proposed 
amendment;  let  them  straighten  it  out,  and  come  in  here  with  a 
printed  form,  so  fhat  it  will  then  be  perfect,  without  printing  it  over 
two  or  three  times. 

The  President  —  The  Chair  understands  that  Mr.  Marshall's 
motion  will  effect  the  object  desired  by  Mr.  Tekulsky,  that  these  are 
to  be  printed,  recommitted,  with  the  amendment  itself,  to'  the  Com- 
mittee on  Constitutional  Amendments  for  a  further  report  by  them, 
retaining  its  place  on  general  orders  which  it  now  holds. 

Mr.  Tekulsky  — All  right. 

The  President  then  put  the  question  on  Mr.  Marshall's  motion, 
and  it  was  determined  in  the  affirmative. 

Mr.  Marshall  —  I  submit  the  following  amendments,  which  I 
desire  to  have  take  the  course  suggested. 


26  REVISED  RECORD.  [Thursday, 

Mr:  Moore  —  I  do  not  hand  mine  to  the  Secretary,  because  I  sup- 
pose he  already  has  them. 

The  President  —  Undoubtedly. 

Mr.  Peabody  —  I  move  that  the  Convention  adjourn. 

The  President  put  the  question  on  Mr.  Peabody's  motion,  which 
was  determined  in  the  affirmative  by  a  standing  vote,  55  to  54. 


Thursday  Morning,  August  2,  1894. 

The  Constitutional  Convention  of  the  State  of  New  York  met  in 
the  Assembly  Chamber  at  Albany,  N.  Y.,  Thursday  morning, 
August  2,  1894. 

President  Choate  called  the  Convention  to  order  at  ten  o'clock. 

The  Rev.  A.  Kennedy  Duff  offered  prayer. 

On  motion  of  Mr.  O'Brien,  the  reading  of  the  Journal  of  yester- 
day was  dispensed  with. 

The  President  —  General  orders.  The  Secretary  will  proceed 
with  the  call. 

The  Secretary  called  the  calendar  of  general  orders. 

Mr.  Vedder  —  Mr.  President  I  move  that  the  Convention  go  into 
Committee  of  the  Whole  on  general  order  No.  16,  which  is  printed 
No.  218-380  (introductory  No.  216). 

The  President  put  the  question  on  the  motion  of  Mr.  Vedder, 
and  it  was  determined  in  the  affirmative. 

The  President  —  Mr.  Acker  will  take  the  chair. 

• 

Chairman  Acker  announced  that  the  Convention  was  in  Com- 
mittee of  the  Whole  on  general  order  No.  16,  introduced  by 
Mr.  Vedder,  entitled  "  proposed  constitutional  amendment,  to 
amend  section  10  of  article  3  of  the  Constitution." 

Mr.  Vedder  —  Mr.  Chairman.  I  move  to  strike  out,  for  the 
purpose  of  explaining  the  proposed  amendment.  The  Con- 
stitution, 'as  it  now  reads  in  section  10  of  article  3,  provides 
that  "  the  Senate  shall  choose  a  temporary  President,  when  the 
Lieutenant-Governor  shall  not  attend  as  President,  or  shall  act  as 
Governor."  In  order  to  choose  a  temporary  President  of  the  Senate 
under  the  present  Constitution,  the  Lieutenant-Governor  must 
vacate  the  chair,  or  be  in  the  Senate  at  the  time  of  its  convening 
and  refuse  to  take  the  chair.  That  produces  a  vacancy.  That  is 
generally  arranged  between  the  Lieutenant-Governor  and  the 
majority  of  the  Senate,  whether  it  is  Republican  or  not.  If,  how- 


August  2.]  CONSTITUTIONAL  CONVENTION.  27 

ever,  under  the  present  Constitution,  the  Lieutenant-Governor 
should  not  vacate  his  chair  for  that  purpose,  no  temporary  Presi- 
dent of  the  Senate  could  be  chosen,  because,  such  temporary 
President  can  only  be  chosen  when  the  Lieutenant-Governor 
shall  not  attend  as  President  or  shall  act  as  Governor. 
We  have  had  trouble  in  that  behalf  in  the  past.  We  had 
considerable  trouble  at  the  time  that  the  Hon.  J.  Sloat  Fassett 
was  President  of  the  Senate  and  the  Hon.  Edward  F.  Jones  was 
Lieutenant-Governor  and  presided  over  the  Senate.  Since  the 
introduction  of  this  proposed  amendment,  and  the  other  day  upon 
the  floor  of  this  Convention,  I  saw  the  present  President  pro  tern, 
of  the  Senate,  Hon.  Charles  T.  Saxton,  and  he  told  me  he  was 
exceedingly  glad  that  such  an  amendment  had  been  introduced.  You 
will  remember  that  last  winter  the  Senate  was  Republican  and  the 
presiding  officer  was  a  Democrat,  and  certain  rules  of  the  Senate 
were  changed  and  amended  so  that  they  were  more  liberal  to  the 
majority  than  the  rules  theretofore  in  force.  Senator  Saxton  told 
me  that  Lieutenant-Governor  Sheehan  told  him  that  if  he  had  antici- 
pated that  the  Republicans  were  going  to  change  the  rules,  he 
would  never  have  left  the  chair,  so  that  the  temporary  President 
could  have  been  chosen,  and  we  would  have  been  acting  all  last 
winter  without  a  temporary  President  of  the  Senate.  In  that  event, 
we  would  have  been  in  this  condition,  that,  if  the  Senate  had 
adjourned,  as  it  had,  and  the  Governor  had  been  rendered  incapable 
of  acting,  and  the  Lieutenant-Governor  had  acted  and  he  became 
incapable,  there  would  not  have  been  anyone  to  act  as  Governor, 
because  there  would  not  be  any  temporary  President  of  the  Senate, 
none  having  been  elected.  This  amendment  provides  that  the 
'  Senate  may,  at  any  time,  elect  a  temporary  President,  and  that  that 
temporary  President  may  act,  in  the  language  of  the  amendment, 
"  in  the  absence  or  impeachment  of  the  Lietuenant-Governor  or 
when  he  shall  not  attend  as  President  or  shall  act'  as  Governor." 
Now,  the  words  put  in,  "  to  preside  in  the  case  of  impeachment  or 
act  as  Governor,"  are  for  this  purpose.  As  the  Constitution  is  to-day, 
articles  of  impeachment  may  be  presented  by  the  Assembly  against 
the  Lieutenant-Governor,  and,  yet,  he  could  act  as  presiding  officer 
of  the  Senate,  not  only  during  their  sessions,  but  he  could  act  as 
presiding  officer  of  the  Senate  sitting  upon  the  trial  of  his  own 
case  as  a  high  court  of  impeachment.  I  believe  that  a  Lieutenant- 
Governor,  who  is  impeached,  ought  not  longer  to  act  until  he  has 
been  tried  and  found  guiltless,  and  that  no  officer  should  perform 
his  functions  after  he  has  been  impeached.  This  amendment  comes 
in  conflict  with  no  amendment  now  before  the  Convention.  It 


28  REVISED  RECORD.  [Thursday, 

does  not  affect  the  proposition  which  was  sent  from  the  Committee 
on  Legislative  Powers  to  the  Committee  on  Judiciary  and  is  now 
before  that  committee,  in  relation  to  the  Lieutenant-Governor,  as 
that  amends  article  6  and  this  amends  article  3.  That  is  also  my 
own  proposition.  Any  question  that  anyone  desires  to  ask,  I 
should  be  pleased  to  answer,  as  far  as  in  my  power.  I  withdraw 
my  motion  to  strike  out. 

Mr.  Hill  —  Mr.  Chairman,  I  would  like  to  ask  the  gentleman 
from  Cattaraugus  (Mr.  Vedder)  as  to  whether  or  not  he  considers 
the  words  in  the  proposed  amendment,  namely,  "  to  preside," 
clothes  the  temporary  President  of  the  Senate  with  sufficient 
powers  to  perform  the  duties  of  Lieutenant-Governor  in  the  absence 
of  the  Lieutenant-Governor? 

Mr.  Vedder  —  All  his  duty  is,  is  to  preside,  anyway.  That  is 
sufficient. 

If  there  is  no  other  motion,  Mr.  Chairman,  to  be  made,  I  move 
that  the  committee  do  now  rise  and  report  this  amendment  to  the 
House  and  recommend  its  passage. 

Mr.  Countryman  —  Mr.  Chairman,  I  would  like  to  make  a  sug- 
gestion to  the  proposer  of  this  amendment,  or  ask  him  a  question, 
if  he  will  withdraw  his  motion. 

Mr.  Vedder  —  I  withdraw  the  motion,  Mr.  Chairman. 

Mr.  Countryman  —  Mr.  Chairman,  as  I  understand  this  proposed 
amendment,  it  does  not  accomplish  the  purpose  for  which  it  is 
designed.  A  case  happened  during  the  last  session  of  the  Legisla- 
ture where  the  Lieutenant-Governor,  while  sitting  in  his  chair, 
refused  to  put  a  motion  and  thus  sought  to  prevent  a  vote  of  the. 
Senate  upon  a  question  upon  which  the  majority  of  the  Senate  were 
against  him,  and  this  proposed  amendment  should  cover  the  case, 
not  only  of  the  absence  of  the  Lieutenant-Governor,  but  of  his  refusal 
to  act.  He  is  merely  the  presiding  officer  of  the  Senate  and  not  a 
member  of  that  body,  as  a  legislative  body.  He  is  there  merely  to 
obey  its  orders,  to  put  such  motions  as  he  is  asked  to  put  while 
sitting  in  the  chair;  and  I,  therefore,  suggest  to  the  honorable 
mover  of  this  proposed  amendment  that  there  ought  to  be  a  clause 
in  it,  where  the  Lieutenant-Governor  refuses  to  act,  although  he 
may  be  in  his  chair  sitting  in  the  Senate  Chamber. 

Mr.  Vedder  —  Well,  I  should  have  no  objection  whatever,  if  the 
gentleman  would  frame  an  amendment  covering  that  case.  We 
have  the  precedent  before  us  of  last  winter. 

Mr.  Countryman  —  I  will. 


August  2.]  CONSTITUTIONAL  CONVENTION.  29 

Mr.  Vedder  —  And  I  will  make  the  motion  to  report  this  pro- 
posed amendment  to  the  House  and  recommend  its  passage,  and, 
when  it  comes  up  for  passage,  if  the  gentleman  will  frame  his 
amendment,  I  will  accept  it.  I  now  renew  my  motion, 
Mr.  Chairman. 

Mr.  Root  —  Mr.  Chairman,  I  would  like  to  ask  of  the  chairman 
of  the  Committee  on  Legislative  Powers,  for  information.  What  is 
pointed  out  in  the  distinction  between  the  absence  of  the  Lieutenant- 
Governor  and  his  not  attending  as  President  of  the  Senate? 

Mr.  Vedder  —  The  words  "  not  attend  "  are  in  the  present  Con- 
stitution. Just  what  they  mean  I  do  not  know,  but  they  are  in  the 
present  Constitution,  and  I  did  not  see  fit  to  change  them  —  I  simply 
added  by  amendment  to  it.  The  way  they  choose  a  temporary 
President  now,  under  the  language  of  the  present  Constitution,  is 
this:  The  President  sits  in  the  Senate  Chamber;  he  is  there,  but  he 
does  not  attend  as  President;  he  is  there;  he  is  in  the  Senate  Cham- 
ber; and  the  chair  is  vacated  and  they  construe  that,  that  he  was  not 
attending,  and  when  he  did  not  attend,  then  they  could  elect  a 
temporary  President.  I  have  added  to  the  language  of  the  present 
Constitution  in  that  behalf,  that  if  he  should  be  absent  —  that  is,  if 
he  should  be  in  New  York  when  the  session  was  going  on  —  so  as  to 
make  it  more  certain  when  the  temporary  President  could  act, 
that  if  he  was  absent  from  the  city,  absent  from  the  Capitol,  or,  if  he 
were  in  the  Capitol  and  did  not  attend  for  the  purpose  of  presiding 
just  the  same  as  he  does  now  when  we  do  choose  a  President;  he 
is  present,  but  does  not  attend  for  that  purpose ;  he  neglects  to  pre- 
side, in  other  words. 

Mr.  Hawley  —  Mr.  Chairman,  1  beg  leave  to  offer  to  the  Conven- 
tion a  single  suggestion,  which,  to  my  mind,  seems  to  be  one  of 
some  considerable  weight  and  which  has,  as  yet,  received  no  con- 
sideration in  the  discussion;  and  that  is,  whether,  by  an  amendment 
to  the  Constitution,  we  shall  put  it  in  the  power  of  a  hostile  Assem- 
bly to  prefer  articles  of  impeachment  against  the  Lieutenant- 
Governor  and  thus  oblige  him  to  vacate  the  chair  as  President  of 
the  Senate.  Of  course,  this  suggestion  goes  to  the  very  root  of  the 
propriety  of  this  amendment,  and,  it  seems  to  me,  that  it  is  fraught 
with  very  great  danger,  and  that  the  Constitution,  as  it  now  is,  is  a 
safer  instrument  than  we  should  have,  if  this  amendment  was  incor- 
porated in  it.  On  occasions  when  party  feeling  runs  high,  it 
would  not  be  a  difficult  matter  to  dispose  of  a  hostile  Lieutenant- 
Governor,  by  preferring  in  the  Assembly  articles  of  impeachment 
against  him.  That  practically  vacates  his  office,  until  he  shall  have 


30  REVISED  RECORD.  [Thursday, 

been  acquitted;  that  practically  reverses  the  fundamental  principles 
of  the  government  that  a  man  is  presumed  to  be  innocent  until  he 
shall  have  been  found  guilty  by  a  trial  court.  That  practically  con- 
victs and  it  disfranchises  a  man  by  a  bill  of  indictment  before  trial. 
I  think  at  this  stage  of  the  discussion  that  it  would  be  ill-advised 
on  the  part  of  the  Convention  to  report  this  amendment  to  the 
House  recommending  its  passage. 

Mr.  Countryman  —  Mr.  Chairman,  there  is  another  aspect  than 
that  which  has  .been  suggested  by  the  gentleman  who  has  just 
taken  his  seat,  and  it  is  this.  It  is  whether  a  presiding  officer  of  a 
legislative  body,  particularly  a  Lieutenant-Governor,  who  is  not  a 
member  of  the  body,  but  a  mere  presiding  officer  by  virtue  of  his 
office;  the  question  is  whether  he  shall  be  permitted,  in 
his  discretion,  to  obstruct  all  legislative  proceedings  whatever 
by  refusing  to  entertain  a  motion  or  to  put  a  question  to 
a  vote  of  the  Senate  or  body  over  which  he  presides.  That  very 
question  arose  in  our  State  last  winter,  where  the  Lieutenant- 
Governor  refused  to  do  so,  and  where  it  became  necessary  for  the 
President  pro  tem.  of  the  Senate  to  put  the  question  in  his  place. 
And  in  a  recent  case  in  the  State  of  Colorado,  where  the  Speaker 
of  the  House  refused  to  entertain  a  motion  for  his  own  impeach- 
ment and  thereby  proposed  to  prevent  any  vote  upon  that  ques- 
tion, the  House  was  obliged  to  ignore  him  entirely  while  sitting 
in  the  chair  and  to  entertain  the  motion  on  the  part  of  another 
member  of  the  House  and  thus  dispose  of  the  question,  and  it  was 
held  by  the  Supreme  Court  of  that  State,  in  passing  upon  it,  that 
the  House  had  a  right  to  do  it.  It  was  held  by  the  Senate  of  this 
State  last  winter  that  its  power  was  unquestioned,  as  a  matter  of 
parliamentary  law.  But,  to  save  all  questions  over  it,  I  submit  that 
it  ought  to  be  incorporated  in  the  Constitution  and  settled  by  a 
provision  of  this  character. 

Mr.  Alvord  —  Mr.  Chairman,  I  differ  with  the  gentleman  from 
Seneca  (Mr.  Hawley)  upon  this  matter,  for  it  takes,  in  the  case  of 
an  impeachment,  the  consent  of  both  Houses  of  the  Legislature. 
The  House  presents  the  indictment,  and,  if  it  is  ignored  by  the 
Senate,  it  drops  at  once.  The  Senate  must  receive  the  indict- 
ment and  approve  of  it  and  call  the  court  of  impeachment  together. 
Under  the  provisions  of  the  Constitution,  as  it  now  stands  (God 
forbid  that  it  will  ever  be  put  into  execution)  the  Lieutenant- 
Governor  of  the  State  has  not  only  the  right  to  preside  in  the  Senate 
upon  his  own  impeachment,  but  he  has  a  right  by  statute  and  con- 
stitutional" law  to  act  as  the  judge  of  the  high  court  of  impeach- 
menjt.  It  does  seem  to  me  that  it  is  proper  and  right  to  put  up  a 


August  2.]  CONSTITUTIONAL  CONVENTION.  31 

bar  against  such  a  state  of  affairs.  I  trust  that  the  original  propo- 
sition, made  by  the  gentleman  from  Cattaraugus,  will  receive  the 
approval  of  this  committee  and  be  reported  favorably  to  the  Con- 
vention proper. 

Mr.  Vedder  —  Mr.  Chairman,  I  renew  the  motion  that  the  com- 
mittee now  rise  and  recommend  the  adoption  of  this  amendment 
to  the  Constitution,  with  the  condition  that  when  Judge  Country- 
man shall  offer  his  amendment  I  will  accept  it,  as  far  as  I  can 
do  that. 

The  Chairman  —  I  do  not  see  how  you  can  impose  a  condition 
upon  that. 

Mr.  Mereness  —  Couldn't  the  difficulty  be  obviated  by  inserting 
in  Mr.  Vedder's  amendment  the  words  "  or  refusal  to  act?  " 

Mr.  Vedder  —  Judge  Countryman  suggested1  this  amendment  and 
I  would  prefer  that  he  should  put  it  in  proper  shape.  If  there 
is  going  to  be  any  difficulty  about  getting  his  amendment  in,  I  will 
change  my  motion  so  that  we  can  go  into  Committee  of  the  Whole 
again.  Therefore,  I  move  that  the  committee  rise,  report  progress 
and  ask  leave  to  sit  again. 

The  Chairman  put  the  question  on  Mr.  Vedder's  motion  that 
the  committee  rise,  report  progress  and  ask  leave  to  sit  again,  and 
it  was  determined  in  the  affirmative. 

The  President  resumed  the  chair. 

Chairman  Acker,  from  the  Committee  of  the  Whole,  reported 
the  action  of  said  committee  on  Mr.  Vedder's  proposed  amendment, 
and  the  report  was  agreed  to. 

The  President  announced  the  order  of  presentation  of  memorials. 

The  President  presented  a  memorial  from  the  president  and 
secretary  of  the  Advance  Labor  Club,  L.  A.  1562,  in  reference  to  the 
method  of  nominating  candidates  for  office. 

Referred  to  the  Committee  on  Industrial  Interests. 

The  President  also  presented  the  petition  of  citizens  of  the  county 
of  Columbia  in  favor  of  equal  suffrage  for  women. 

Referred  to  the  Committee  on  Suffrage. 

The  President  also  presented  the  petition  of  citizens  of  New 
York  city  and  Brooklyn,  praying  for  an  amendment  prohibiting 
bequests  of  over  $50,000,  the  residue  to  be  paid  into  the  public 
treasury. 

Referred  to  the  Committee  on  Preamble  and  Bill  of  Rights. 

Mr.  Barhite  —  Mr.  President,  I  desire  to  introduce  some  addi- 
tional statistics,  which  show  that  in  the  city  of  Troy  there  is  some- 


32  REVISED  RECORD.  [Thursday, 

thing  over  seventeen  millions  of  property  assessed  to  women,  and 
in  the  city  of  Albany  something  over  fifteen  millions.  We  thus 
get  an  idea  of  the  relative  merits  of  the  two  cities. 

Mr.  Roche  —  Mr.  President,  may  I  inquire  what  those  fig- 
ures are? 

The  Secretary  read  the  figures  as  follows: 

Taxable  property  owned  by  women  in  the  city  of  Troy, 
$17,429,720,  and  taxable  property  owned  by  women  in  the  city  of 
Albany,  $15,093,632. 

Mr.  Roche  —  I  simply  want  to  express  my  great  satisfaction, 
Mr.  President,  at  what  the  gentleman  has  termed  "  the  relative 
merits  of  Troy  and  Albany." 

Mr.  Johnston  (by  request)  presented  the  petition  of  the 
Citizens'  Union  of  the  Seventeenth  Ward  of  Brooklyn,  in  regard 
to  prohibiting  bone  burning,  fat  boiling,  etc.,  within  three  miles 
of  the  city  limits  of  any  city  having  a  population  of  one  hundred 
thousand  or  more. 

Referred  to  the  Committee  on  Industrial  Interests. 

Mr.  Deyo  —  Mr.  President,  I  desire  to  request  indefinite  leave 
of  absence  for  Mr.  Durnin,  on  account  of  illness. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Durnin,  and  it  was  determined  in  the  affirmative. 

Mr.  Holcomb  — -  Mr.  President,  I  have  to  go  to  New  York- 
to-night  and  I  would  be  obliged,  if  I  could  have  leave  of  absence  for 
to-morrow. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Holcomb,  and  it  was  determined  in  the  affirmative. 

Mr.  Roche  —  Mr.  President,  I  have  official  business  which  ren- 
ders it  necessary  for  me  to  be  in  Troy  this  evening,  Friday  and 
Tuesday  morning,  and  I  would  like  to  be  excused  from  attendance. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Roche,  and  it  was  determined  in  the  affirmative. 

Mr.  Goodelle  —  Mr.  President,  I  have  a  dispatch  from  Mr.  Lewis, 
of  Onondaga,  asking  leave  to  be  excused  to-day  on  account  of  a 
business  engagement. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Lewis,  and  it  was  determined  in  the  affirmative. 

Mr.  McClure  —  Mr.  President,  I  ask  to  be  excused  to-morrow 
on  the  ground  of  urgent  professional  business. 


August  2.]  CONSTITUTIONAL  CONVENTION.  33 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  McClure,  and  it  was  determined  in  the  affirmative. 

Mr.  Cornwell  —  Mr.  President,  I  ask  to  be  excused  to-morrow 
on  account  of  business  engagements. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Cornwell,  and  it  was  determined  in  the  affirmative. 

Mr.  Jesse  Johnson  —  Mr.  President,  I  ask  leave  of  absence  for 
to-morrow  on  the  ground  that  I  did  not  use  the  former  leave  of 
absence  given  me. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Johnson,  and  it  was  determined  in  the  affirmative. 

Mr.  Powell  —  Mr.  President,  I  ask  to  be  excused  from  the  session 
of  the  Convention  to-morrow  on  account  of  pressing  business. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Powell,  and  it  was  determined  in  the  affirmative. 

The  President  announced  communications  from  State  officers  in 
order. 

The  Secretary  read  the  following  communication  from  the  State 
Engineer  and  Surveyor  (communication  No.  23,  in  response  to 
resolution  No.  135): 

"  I  have  the  honor  to  submit  the  following  report,  pursuant  to 
a  resolution  of  the  Convention  of  July  18,  1894,  requesting  the  State 
Engineer  and  Surveyor  and  the  Superintendent  of  Public  Works  to 
obtain  and  report  the  first  day  of  August,  a  detailed  estimate  of 
the  cost  of  improving  the  various  canals  of  the  State. 

"  Office  of  the  State  Engineer  and  Surveyor,  Albany,  N.  Y., 
August  i,  1894." 

Mr.  Hottenroth  —  Mr.  President,  I  move  that  the  reading  of 
that  be  dispensed  with  and  that  it  be  printed  and  placed  on  file. 

The  President  put  the  question  on  Mr.  Hottenroth's  motion,  and 
it  was  determined  in  the  affirmative. 

The  President  announced  the  order  of  notices,  motions  and 
resolutions,  and  the  Secretary  proceeded  with  the  call  of  the 
districts. 

Mr.  Floyd  —  Mr.  President,  I  desire  to  send  up  a  resolution, 
which  I  will  read.  It  is  as  follows : 

R.  160. —  Resolved,  That  the  communication  received  from  the 
second  vice-president  of  the  Pennsylvania  railroad,  upon  the  subject 
of  passes,  be  printed  and  placed  upon  the  files  of  the  delegates. 

3 


34  REVISED  RECORD.  [Thursday, 

This  communication  at  present  is  entombed  in  the  bosom  of  the 
Railroad  Committee,  and  it  might  as  well  be  entombed  in  Abra- 
ham's bosom,  in  which  case  the  Convention  could  only  see  it  far 
off.  This  communication  is  both  instructive  and  forcible,  and  I 
know  of  no  other  way  of  bringing  it  to  the  notice  of  the  Convention 
than  by  having  it  printed.  There  are  in  the  Railroad  Committee 
three  proposed  amendments  on  this  matter.  Some  of  them  will, 
undoubtedly,  be  brought  before  the  Convention  for  discussion,  and 
there  can  be  no  better  preparation  for  that  side  of  the  question 
than  the  printing  of  the  communication.  That  is  the  reason  I 
introduce  the  resolution  asking  that  it  be  printed. 

The  President  put  the  question  on  Mr.  Floyd's  resolution,  and  it 
was  determined  in  the  affirmative. 

Mr.  I.  Sam  Johnson  offered  the  following  resolution: 
R.  161. — "  Resolved,  That  the  commissioners  of  taxation  and 
assessments  of  the  city  of  New  York  be  respectfully  requested  to 
furnish  this  Convention  with  a  statement  of  the  condition  of  the 
several  trust  companies  of  said  city,  showing  the  gross  capital 
stock  paid  in  or  secured  to  be  paid  in,  surplus  earnings,  rate  of 
dividends  for  the  last  year,  deductions  and  nature  of  deductions 
made,  and  the  amount  of  property  upon  which  each  company  pays 
taxes;  and,  also,  the  time  of  purchase  of  non-taxable  property  or 
securities  by  said  companies,  so  far  as  the  same  is  known  by  said 
commissioners." 

The  President  —  Referred  to  the  Committee  on  Banking, 
Mr.  Johnson? 

Mr.  Johnson  —  I  should  like  to  have  it  go  to  the  Committee 
on  State  Finances  and  Taxation. 

The  President  —  Referred  to  the  Committee  on  State  Finances 
and  Taxation.  The  call  for  proposed  amendments  is  now  sus- 
pended, under  the  rules,  and  they  will  not  be  called  for  from  to-day 
on.  Reports  of  standing  committees  are  in  order. 

Mr.  Francis,  from  the  Committee  on  Preamble  and  Bill  of  Rights, 
to  which  was  referred  the  proposed  constitutional  amendment,  intro- 
duced by  Mr.  Goeller  (introductory  No.  262),  entitled  "  Proposed 
constitutional  amendment,  to  amend  the  Constitution  by  adding  a 
new  section  thereto  to  protect  innocent  purchasers  of  real  estate 
and  to  prevent  fraud  and  limit  the  time  for  which  remedy  for  the 
fraud  can  be  had,"  reported  adversely  thereto. 

Mr.  Goeller  —  Mr.  President,  the  reading  of  that  amendment 
would  take  up  considerable  time  and  occasion  delay,  and  I,  being 


August  2.]  CONSTITUTIONAL  CONVENTION.  35 

actuated  by  the  belief  that  there  is  a  disposition  on  the  part  of  the 
Convention  to  adopt  committee  reports,  ask  that  the  amendment 
be  not  read,  and,  being  the  introducer  of  the  proposed  amendment, 
and,  in  view  of  the  belief  that  I  have  formed,  I  shall  practice  the 
virtue  of  desisting,  yielding,  etc.,  and  ask  that  the  report  of  the 
committee  be  approved. 

The  President  put  the  question  on  agreeing  with  the  report  of 
the  committee,  and  it  was  determined  in  the  affirmative. 

Mr.  Davies  —  Mr.  President,  I  desire  to  present  a  report  from 
the  Committee  on  Railroads,  and  in  connection  with  that  report  I 
desire  to  state  that  several  members  of  the  committee  wish  to  take 
such  action  in  the  Committee  of  the  Whole,  or  on  the  final  passage 
of  the  proposed  amendment,  as  they  deem  proper. 

Mr.  Davi.es,  from  the  Committee  on  Railroads,  to  which  was 
referred  proposed  constitutional  amendment,  introduced  by 
Mr.  E.  R.  Brown  (introductory  No.  47),  entitled  "  Proposed  con- 
stitutional amendment,  to  amend  article  I  of  the  Constitution,  pro- 
hibiting public  officers  riding  on  passes,"  reported  in  favor  of  the 
passage  of  the  same,  with  some  amendments. 

The  Secretary  read  the  proposed  amendment,  as  amended  by 
the  committee,  and  it  was  referred  to  the  Committee  of  the  Whole. 

Mr.  Foote,  from  the  Committee  on  Revision  and  Engrossment, 
to  which  was  referred  the  proposed  constitutional  amendment  intro- 
duced by  Mr.  Dickey  (introductory  No.  6,  printed  No.  339),  entitled 
"  proposed  constitutional  amendment,  to  amend  article  10  of  the 
Constitution,  so  as  to  do  away  with  the  office  of  coroner  as  a  con- 
stitutional officer,"  as  reported  by  the  Committee  of  the  Whole, 
reports  the  same  as  examined  and  corrected  by  the  committee  and 
as  correctly  engrossed. 

The  Secretary  read  the  amendment,  as  reported  from  the 
committee. 

The  President  —  The  question  will  be  on  ordering  it  to  a  third 
reading. 

Mr.  Foote  —  Mr.  President,  the  report  of  the  committee  upon 
that  amendment  consists  of  a  draft  of  the  section  from  which  the 
word  "  coroner"  is  omitted  by  the  amendment,  and  we  have  taken 
the  liberty  of  calling  attention  to  the  fact  that  the  word  "  coroner  " 
does  occur  in  another  section  of  the  Constitution,  a  section  of  a 
temporary  character,  however,  which  provides  for  the  continuing 
in  office  of  certain  coroners,  and  it  may  be  necessary  to  change  the 
language  of  that  other  section  as  well. 


36  REVISED  RECORD.  [Thursday, 

Mr.  Dickey  —  Mr.  President,  the  section  that  the  committee  calls 
attention  to,  where  the  word  "  coroner  "  appears,  is  an  obsolete  sec- 
tion. It  merely  provides  for  the  continuing  in  office  of  the  then 
incumbents  of  the  office  of  coroner,  and,  as  their  terms  were  two 
years,  or  three  at  the  most,  that  time  having  passed  many  years 
ago,  this  section  is  obsolete,  and  I  don't  think  it  needs  any  amend- 
ment. Anyway,  it  should  not  interfere  with  the  third  reading  of 
the  amendment  as  favorably  reported. 

The  President  —  The  rule  seems  to  be  this,  and  this  is  the  first 
time  that  such  a  matter  has  come  up  for  disposition,  that  when 
an  amendment  has  been  reported  by  the  Committee  on  Revision 
and  Engrossment  as  correctly  revised  and  engrossed,  it  cannot  be 
read  a  third  time  until  it  has  been  reprinted.  This  amendment  has 
never  been  so  printed,  and,  therefore,  the  third  reading  cannot  be 
moved  until  that  printing  has  taken  place. 

Mr.  Dickey  —  Mr.  President,  will  a  motion  be  necessary  to  print? 
The  President  —  Under  the  rules  it  must  be  printed. 

Mr.  Mantanye  —  Mr.  President,  it  seems  to  me  that  the  report 
of  the  Revision  Committee  upon  this  section  should  not  have  been 
made  or  presented  to  the  Convention,  and  it  should  not,  as  yet,  be 
printed.  This  section  contains  in  it  provisions  in  regard  to  all 
county  officers,  sheriffs  and  other  officers,  specifying  who  shall  be 
the  constitutional  county  officers,  their  terms  of  office  and  other 
matters  in  relation  to  them.  When  this  matter  was  reported  from 
the  Committee  on  County,  Town  and  Village  Officers,  we  were  in 
favor  of  the  amendment  which  would  drop  the  office  of  coroner  from 
this  section.  It  was  then  stated  that  this  was  only  one  of  several 
propositions  which  were  before  us.  For  instance,  there  is  another 
proposition  to  make  the  office  of  county  treasurer  a  constitutional 
office,  as  it  is  not  a  constitutional  office  at  this  time.  There  is 
another  proposition  to  make  the  sheriff  eligible  to  re-election  and 
others  to  make  the  county  treasurer  ineligible,  and  there  are  propo- 
sitions to  create  other  county  officers,  and  to  make  other  provisions. 
All  these  matters  are  still  pending  before  that  committee  and  we 
are  having  hearings  upon  them  from  day  to  day  when  our  com- 
mittee meets.  Those  matters  will  be  reported  as  fast  as  we  can 
decide  upon  them,  and,  as  was  stated  when  this  matter  was  here, 
it  was  thought  better  to  report  upon  each  proposition  separately, 
as  to  each  officer,  and  take  the  action  of  the  Convention  before 
reporting  the  whole  section  together,  and  that  then  the  whole  sec- 
tion would  be  reported  from  that  committee  in  accordance  with 
other  constitutional  amendments,  which  include  the  whole  section, 


August  2.]  CONSTITUTIONAL  CONVENTION.  37 

and  the  whole  matter  would  then  go  before  the  Revision  Com- 
mittee. It  was  with  that  view,  when  the  matter  was  ordered,  or 
about  to  be  ordered,  to  the  Revision  Committee,  after  passing  the 
Committee  of  the  Whole,  that  I  made  the  motion  that  the  matter 
stand  and  be  referred  back  to  the  committee  from  which  it  came 
until  these  other  matters  could  be  settled  and  reported  for  the  action 
of  the  Convention.  It  would,  therefore,  seem  to  me  to  be  entirely 
out  of  order  to  print  this  proposition  alone,  that  is,  it  would  seem 
to  me  to  be  entirely  unnecessary  work  and  would  have  to  be  done 
over  again.  I,  therefore,  move  that  the  matter  lie  on  the  table  until 
the  report  of  the  committee  is  received  on  the  other  questions. 

The  President  —  Do  you  make  that  motion? 

Mr.  Mantanye  —  Mr.  President,  I  made  that  as  a  motion,  but  it 
is  suggested  by  others  that  the  motion  should  be  to  refer  this  back 
to  the  committee,  to  be  held  until  the  other  matters  are  reported 
by  the  committee.  I  will  make  the  motion,  then,  to  refer  it  back 
to  the  Revision  Committee,  to  be  held  until  the  report  of  the  Com- 
mittee on  County,  Town  and  Village  Officers  upon  the  other  pro- 
posed amendments  is  disposed  of. 

Mr.  Dickey  —  Mr.  President,  I  hope  that  resolution  will  not 
prevail.  We  are  moving  forward  and  making  progress  and  I  hope 
we  will  continue  to  do  so,  and,  if  we  can  dispose  of  a  matter,  we 
should  do  so  and  make  room  for  something  else.  The  motion  is 
entirely  unnecessary  and  uncalled  for. 

Mr.  Hawley  —  Mr.  President,  I  would  like  to  inquire  if  Mr.  Man- 
tanye desires  to  send  this  amendment  back  to  the  Committee  ori 
County,  Town  and  Village  Officers  or  back  to  the  Committee  on 
Revision? 

.Mr.  Mantanye  —  My  motion  was  to  send  it  back  to  the  Com- 
mittee on  Revision. 

Mr.  Hawley  —  Mr.  President,  that  was  my  understanding  of  it, 
but  other  gentlemen  did  not  understand  it  in  the  same  way.  It 
seems  to  me,  Mr.  President,  that  that  suggestion  is  not  an  improper 
one.  The  Committee  on  Revision  reported  this  under  the  stress 
of  the  rule  that  they  should  report  the  amendments  committed  to 
them  in  the  order  in  which  they  are  committed.  But,  if  this  same 
section  is  to  receiv*  further  revision,  the  Committee  on  Revision 
consider  that  their  duties  are  quite  technical  and  we  have  taken 
the  pains,  in  this  instance,  and  we  propose  to  take  the  pains  in  other 
instances  where  parts  of  the  present  Constitution  remain  in  an 
amendment,  to  compare  the  text  with  the  original  engrossed  copy 
of  the  Constitution  in  the  office  of  the  Secretary  of  State,  and  to 


38  REVISED  RECORD.  [Thursday, 

follow  exactly  capitalization  and  punctuation  to  the  minutest  particu- 
lar, and  so  it  involves,  if  this  section  comes  to  us  again,  its  exami- 
nation the  second  time,  and,  if  it  is  to  come  to  us  again,  it  seems 
to  me  exceedingly  advisable  that  we  might  take  it  up  and  scrutinize 
it  and  report  it  to  the  Convention  once  for  all. 

The  President  —  The  question  is  on  Mr.  Mantanye's  motion  to 
refer  this  proposed  amendment  back  to  the  Committee  on  Revision. 
If  that  is  not  done  under  the  rules,  it  is  printed  and  put  upon  the 
order  of  third  reading. 

Mr.  Maybee  —  It  appears  to  me,  sir,  that  the  method  of  proced- 
ure proposed  by  the  gentlemen  from  Cortland  (Mr.  Mantanye)  will 
defer  final  action  on  any  of  the  proposed  amendments  before  this 
Convention  until  very  near  the  close  of  the  session.  If  an  amend- 
ment is  reported  favorably  by  a  committee  and  then  goes  to  the 
Committee  on  Revision  before  final  action  of  the  Convention,  and 
is  to  await  the  action  of  all  other  committees,  why,  all  final  action 
will  be  deferred  until  the  closing  week  of  the  Convention.  I  think, 
Mr.  President,  that  that  is  very  unwise,  and  that  we  should  com- 
plete our  business,  so  far  as  we  can,  as  we  go  along. 

Mr.  E.  A.  Brown  —  It  seems  to  me  that  if  there  are  any  matters 
now  in  the  Committee  on  County,  Town  and  Village  Officers;  the 
action  of  the  Convention  in  passing  this  proposed  amendment  would 
be  made  much  more  easy  by  that  committee  reforming  their  report, 
and  thereby  save  us  the  time  necessary  to  defer  this. 

The  President  put  the  question  on  Mr.  Mantanye's  motion,  and 
it  was  lost. 

The  President  —  Mr.  Mantanye's  motion  is  lost,  and  the  amend- 
ment, under  the  rule,  is  ordered  to  be  printed  and  put  upon  the 
order  of  third  reading. 

Mr.  Foote,  from  the  Committee  on  Revision  and  Engrossment, 
to  which  was  referred  the  proposed  constitutional  amendment,  intro- 
duced by  Mr.  Vedder  (introductory  No.  269),  entitled  "  Proposed 
constitutional  amendment,  to  amend  section  7  of  article  4  of  the 
Constitution,"  as  reported  by  the  Committee  of  the  Whole,  reports 
the  same  as  examined  and  corrected  by  the  committee,  and  as  cor- 
rectly engrossed. 

The  President  —  Ordered  printed  and  placed  upon  the  order  of 
third  reading. 

Mr.  Cookinham  —  Mr.  President,  I  fear  the  Convention  will  get 
into  difficulty  if  this  course  is  pursued.  It  seems  to  me,  sir,  that  all 
of  these  amendments  should  not  go  to  third  reading  until  the  sec- 


August  2.]  CONSTITUTIONAL  CONVENTION.  39 

tion  is  complete.  Let  me  illustrate.  Take  the  case  upon  Mr.  Man- 
tanye's  motion.  The  same  section  is  again  amended,  again  sent 
to  the  Committee  on  Revision,  and  again  reported  to  the  Conven- 
tion; again  sent  to  the  printer  and  again  put  on  the  order  of  third 
reading.  Now,  what  will  be  the  position  of  the  Convention?  Two 
sections  before  the  Convention,  or  the  same  section  before  the 
Convention,  upon  third  reading,  but  reading  differently.  Now,  it 
comes  up  upon  third  reading,  and,  under  the  rules,  it  cannot  be 
amended.  Therefore,  the  Convention  is  obliged  to  vote  upon  it, 
and,  if  it  passes  it,  it  adopts  that  amendment.  Then  you  have  the 
same  section  in  two  forms  adopted  to  go  to  the  people.  Is  that 
what  the  Convention  intends  to  do?  It  seems  to  me  that  unless 
it  can  be  stated  authoritatively  that  there  are  no  amendments  to  a 
particular  constitutional  amendment,  that  it  should  not  be  passed  to 
a  third  reading,  as  the  one  that  has  been  reported  from  the  com- 
mittee. I  would  ask,  Mr.  President,  that  we  be  informed  by  the 
Committee  on  Revision  whether  or  not  there  are  other  pending 
amendments  to  this  section? 

Mr.  Foote  —  I  understand  the  question  of  the  gentleman  from 
Oneida  to  be  whether  there  are  other  pending  amendments  to 
these  same  sections? 

The  President  —  Yes;  correcting  the  same  section. 

x 

Mr.  Foote  —  The  Committee  on  Revision  has  no  knowledge  on 
that  subject.  There  are  no  other  pending  amendments  before  that 
committee. 

Mr.  Roche  —  I  would  like  to  ask,  with  reference  to  this  first 
report  from  the  Committee  on  Revision,  this  question:  If  this 
amendment  is  printed,  and  is  ordered  to  a  third  reading,  according 
to  the  present  rule,  will  it  be  considered  as  a  final  adoption  of  that 
section  in  such  manner  as  to  preclude  the  presentation  of  other 
amendments  to  the  same  section,  or  their  consideration?  I  ask 
that  question,  because  I  have  an  amendment  which  is  before  the 
Committee  on  County,  Town  and  Village  Officers,  relative  to  this 
same  section,  but  covering  different  officers  named  in  that  section. 
Now,  the  entire  section  is  reported  with  the  word  "coroners" 
simply  left  out.  If  it  is  adopted  in  the  form  in  which  it  is  reported, 
what  will  be  the  effect  upon  the  other  amendments  which  are  now 
in  it? 

Mr.  Foote  —  Mr.  President,  I  understand  that  rule  67  is  intended 
to  provide  for  the  contingency,  among  others,  mentioned  by  the 
gentleman  from  Troy.  That  rule  provides  that  at  least  five  days 
before  the  final  adjournment  of  the  Convention  the  Committee  on 


40  REVISED  RECORD.  [Thursday, 

Revision  and  Engrossment  shall  be  instructed  to  accurately  enroll 
and  engross  the  present  State  Constitution,  with  all  proposed 
amendments  thereto  properly  inserted  —  or  the  proposed  new  Con- 
stitution—  and  that  the  same  shall  be  reported  by  said  committee 
to  the  Convention,  read  through  therein,  and  submitted  to  a  final 
vote  of  the  Convention  prior  to  final  adjournment.  Under  that 
rule,  I  suppose  it  to  be  the  duty  of  the  Committee  on  Revision  and 
Engrossment  to  then  insert  all  amendments  which  had  been  adopted 
by  the  Convention. 

Mr.  Cookinham  —  The  gentleman  who  has  last  addressed  the 
Convention  (Mr.  Foote)  may  be  correct;  but,  sir,  after  an  amend- 
ment has  been  passed  upon  by  the  Convention  on  the  order  of  third 
reading  that  amendment  can  never  be  voted  on  again  until  you 
have  reconsidered  the  vote,  and  that  has  been  carried,  and  then  the 
amendment  is  before  the  Convention  for  another  vote;  so  that 
should  the  gentleman's  views  be  carried  out  in  this  regard,  it  would 
be  necessary  for  us  at  least  within  five  days  of  the  adjournment  of 
the  Convention,  to  reconsider  every  vote  upon  every  amendment, 
and  then  pass  the  Constitution  as  a  whole.  Now,  for  the  sake  of 
disposing  of  this  matter  and  giving  us  time  to  investigate,  I  move 
that  the  report  of  the  committee  be  laid  upon  the  table  for  the 
present. 

The  President  —  You  mean  all  of  the  amendments,  I  assume? 
Mr.  Cookinham  —  Yes,  sir;  all  three  of  them. 

Mr.  Acker  —  I  do  not  think  that  proposition  is  necessary.  The 
Committee  on  Revision  and  Engrossment  has  presented  its  report 
upon  the  proposition  introduced  by  Mr.  Dickey.  Now,  then, 
although  a  dozen  other  members  may  desire,  by  a  special  proposi- 
tion, to  amend  this  same  section,  how  are  we  to  get  rid  of  voting 
upon  those  propositions  if  the  Committee  on  Revision  and  Engross- 
ment hold  them  all  and  bring  them  out  here  together?  Then  the 
motion  will  occur  upon  each  one  separately.  We  might  just  as  well 
vote  when  they  have  reported,  as  to  wait  until  they  gather  them  all 
together  and  then  vote  upon  each  one  separately.  The  whole  mat- 
ter will  have  to  go  to  the  Committee  on  Revision  five  days  before 
our  adjournment  and  the  Constitution,  as  a  whole,  put  together.  If 
we  stand  around  here  and  wait  until  the  last  proposition  is  adopted, 
when  in  the  world  will  we  vote  on  the  first  one?  Is  it  not  about 
time  that  we  decided  whether  we  wanted  a  coroner  or  not?  Do  not 
let  us  wait  until  somebody  has  introduced  another  proposition,  and 
then  wait  until  the  last  day  of  the  Convention  before  we  take  final 
action.  The  proper  way  to  do  is  to  go  on  just  as  we  have  done, 


August  2.]  CONSTITUTIONAL  CONVENTION.  41 

follow  these  rules  right  straight  through,  and  not  lay  every  propo- 
sition on  the  table  until  we  can  consider  it  longer.  I  hope  this 
motion  will  not  prevail,  and  that  the  Convention  will  proceed  with 
its  work  and  observe  its  rules,  and  then  we  will  get  through 
some  time. 

Mr.  Alvord  —  Understanding  the  President,  by  his  silence,  to 
rule  that  the  motion  made  by  the  gentleman  from  Onondaga  is  not 
a  previous  question  to  lay  upon  the  table,  I  ask  leave  of  the  Chair  to 
make  a  few  remarks.  I  hold  that  the  proposition  of  the  gentleman 
from  Oneida  is  the  correct  one.  It  is  the  only  way  we  can  raise 
propositions  until  we  get  the  whole  of  them  before  the  Convention, 
and  then  act  upon  them  understandingly  in  selecting  the  best  of 
those  which  are  before  us.  There  is  no  other  way  of  getting  out  of 
this  dilemma;  and,  I  trust,  therefore,  that  the  Chair  will  rule  that 
this  is  not  a  debatable  question,  being  a  motion  to  lie  on  the  table, 
and  that  the  gentleman  from  Oneida  will  prevail  in  his  motion. 

The  President  —  The  motion  is  not  debatable,  except  by  Mr. 
Alvord.  The  question  is  upon  laying  on  the  table  for  the  present 
these  three  amendments  that  have  come  from  the  Committee  on 
Revision. 

The  President  put  the  question,  and  the  motion  to  lay  on  the 
table  prevailed  by  a  vote  of  54  to  21. 

Mr.  Peck  —  I  rise  to  a  question  of  order.  I  would  like  to  inquire 
where  those  reports  now  are?  They  were  once  ordered  on  third 
reading  and  are  now  said  to  be  laid  on  the  table.  Are  they  now,  on 
third  reading,  laid  on  the  table? 

The  President  —  I  understand  that,  having  been  printed  and  put 
on  the  order  of  third  reading,  any  further  proceeding  is  suspended 
by  their  being  laid  on  the  table  by  the  order  of  the  house. 

Mr.  Forbes  —  I  wish  to  ask  the  Chair  whether  they  will  be 
printed  as  a  matter  of  course.  Otherwise,  if  they  are  not  to  be 
printed  as  a  matter  of  course,  I  would  move  that  they  be  printed. 

The  President  —  The  Chair  understands  that  the  business  of 
printing  has  been  suspended  by  the  order  of  the  House.  It  would 
require  a  further  vote  of  the  House  to  order  them  printed.  Do  you 
make  that  motion? 

Mr.  Forbes  —  Yes,  sir. 

The  President  put  the  question  on  Mr.  Forbes's  motion,  and  it 
was  carried. 

Mr.  Goodelle,  from  the  Committee  on  Suffrage,  presented  a 
report  referring  to  the  proposed  constitutional  amendment  intro- 


42  REVISED  RECORD.  [Thursday, 

ducecl  by  Mr.  Dean  (introductory  No.  21),  entitled  "  Proposed  con- 
stitutional amendment  to  amend  article  2,  to  enfranchise  women,  to 
disfranchise  mercenary  voters,  to  suspend  the  suffrage  under  certain 
conditions,  and  to  preserve  the  integrity  of  the  ballot,"  reporting 
adversely  thereon. 

Mr.  Goodelle  —  As  the  bill  is  quite  long,  unless  the  proposer 
desires  to  have  it  read,  I  would  suggest  a  suspension  of  its  reading; 
and  I  desire  to  say  at  this  time,  as  I  am  instructed  to  say  by  the 
Committee  on  Suffrage,  that  the  committee  are  unanimously  of  the 
opinion  —  including  the  advocates  of  women  suffrage  as  well  as 
those  opposed  to  the  proposition  —  that  these  matters  that  I  present 
at  this  time  shall  be  disposed  of,  and  that  before  we  are  through  I 
shall  ask  that  one  of  the  propositions  be  made  the  special  order  for 
next  Wednesday  evening,  and  the  other  be  laid  upon  the  table, 
which  two  propositions,  as  I  understand  it,  according  to  the  con- 
census of  opinion  of  the  people  that  are  interested  in  this  question 
on  both  sides  accord  .with  it.  I  cannot  speak  from  authority,  but 
all  those  who  are  interested  have  suggested  to  me  that  when  the 
question  comes  up  we  shall  ask  to  have  it  made  the  special  order 
for  next  Wednesday  evening,  so  that  the  whole  question  may  then 
be  raised  and  open  to  discussion.  That  proposition  will  be  an 
amendment  introduced  proposing  that  the  entire  question  of  female 
suffrage  be  left  as  an  independent  proposition  to  the  people  of  the 
State,  to  be  voted  upon  at  the  same  time  as  the  other  constitutional 
amendments,  but  in  a  separate  proposition.  I  am  aware  that  there 
are  several  gentlemen  who  desire  to  be  heard  upon  the  question,  and 
that  question  when  it  comes  up,  as  I  understand,  will  open  the  entire 
field;  for  everyone  who  wants  to  discuss  the  proposition  for  female 
suffrage  can  then  discuss  it  under  that  head.  As  I  understand  it, 
as  it  is  suggested,  those  who  are  interested  in  the  question  of 
female  suffrage  and  desire  to  concentrate  their  forces  upon  that 
proposition,  the  discussion  shall  be  confined  to  the  question  as 
coming  up  on  that  proposition.  The  apparent  purpose  of  the  sug- 
gestion, of  course,  will  occur  to  every  member  of  the  Convention, 
and  it  is  that  the  same  question  shall  not  be  discussed  over  and  over 
again  upon  these  separate  propositions  as  they  shall  come  up, 
where  they  all  involve  the  same  question.  I  make  that  suggestion, 
and  I  move,  therefore,  that  the  report  be  agreed  to. 

Mr.  Dean  —  As  the  mover  of  that  proposition,  Mr.  President, 
I  am  very  glad  to  know  that  at  some  time  the  movers  of  these 
propositions  are  to  be  given  a  hearing.  That  courtesy  has  not  been 
accorded  by  the  committee.  Therefore,  I  am  entirely  willing  to 


August  2.]  CONSTITUTIONAL  CONVENTION.  43 

allow  the  matter  to  go  as  the  chairman  of  the  committee  has 
suggested. 

The  President  put  the  question  on  the  motion  of  Mr.  Goodelle, 
that  the  report  of  the  committee  be  agreed  to,  and  it  was  carried. 

Mr.  Goodelle,  from  the  Committee  on  Suffrage,  to  which  was 
referred  the  proposed  amendment  of  Mr.  Moore  (introductory  No. 
181),  entitled  "  Proposed  constitutional  amendment  to  amend  article 
2  of  the  Constitution,  by  adding  a  new  section  relating  to  the 
qualifications  of  voters  to  be  known  as  section  6  of  article  2  of  the 
Constitution,"  reports  adversely  thereto. 

Mr.  Goodelle  —  I  move  that  the  report  of  the  committee  be 
agreed  to. 

The  President  —  Is  the  Convention  ready  for  the  question? 

Mr.  Moore  —  I  have  no  objection  to  agreeing  to  the  adverse 
report  of  the  committee  on  the  grounds  stated  by  the  chairman 
thereof,  that  the  whole  matter  be  relegated  to  a  special  order  for 
next  Wednesday  evening.  Accordingly,  for  that  reason,  I  am  will- 
ing to  agree  to  it. 

The  President  put  the  question  on  the  motion  to  adopt  the 
report,  and  it  was  carried. 

Mr.  Goodelle,  from  the  Committee  on  Suffrage,  to  which  was 
referred  the  proposed  amendment  introduced  by  Mr.  Foote  (intro- 
ductory No.  224),  entitled  "  Proposed  constitutional  amend- 
ment to  amend  section  i  of  article  2  of  the  Constitution,  by  pro- 
viding for  submitting  to  a  vote  of  the  people,  male  and  female,  the 
question  as  to  whether  the  word  '  male '  shall  be  stricken  from  said 
section,"  etc.,  reports  adversely  thereto. 

The  President  —  The  question  is  on  agreeing  to  this  adverse 
report. 

Mr.  Foote  —  I  have  never  been  an  advocate  of  the  proposition 
embodied  in  this  proposed  amendment.  I  presented  it  to  the  Con- 
vention at  the  request  of  a  friend.  I  move  that  the  adverse  report 
of  the  committee  be  agreed  to. 

The  President  put  the  question  on  the  motion  of  Mr.  Foote, 
agreeing  to  the  adverse  report  of  the  committee,  and  it  was  carried. 

Mr.  Goodelle,  from  the  Committee  on  Suffrage,  to  which  was 
referred  the  proposed  amendment  introduced  by  Mr.  Lincoln  (intro- 
ductory No.  108),  entitled  "  Proposed  constitutional  amendment  to 
amend  article  2  of  the  Constitution,  relating  to  voting  by  women 
who  are  taxpayers,"  reports  adversely  thereto. 


44  REVISED  RECORD.  [Thursday, 

The  President  put  the  question  on  agreeing  to  the  adverse  report 
of  the  committee,  and  it  was  agreed  to. 

Mr.  Goodelle,  from  the  Committee  on  Suffrage,  to  which  was 
referred  the  proposed  amendment  introduced  by  Mr.  Tibbetts 
(introductory  No.  297),  entitled  "  Proposed  constitutional  amend- 
ment, to  amend  section  i  of  article  2  of  the  Constitution,  in  reference 
to  suffrage,"  reports  adversely  thereto. 

The  President  put  the  question  on  accepting  the  adverse  report 
of  the  committee,  and  it  was  agreed  to. 

Mr.  Goodelle,  from  the  Committee  on  Suffrage,  to  which  was 
referred  the  proposed  constitutional  amendment,  introduced  by 
Mr.  Abbott  (introductory  No.  222),  entitled  "  Proposed  constitu- 
tional amendment  to  amend  section  I  of  article  2  of  the  Constitu- 
tion, relating  to  suffrage,"  reports  adversely  thereto. 

Mr.  Abbott  —  In  accordance  with  the  understanding,  as  stated 
by  the  chairman  of  the  Committee  on  Suffrage,  I  am  content  that 
this  amendment  should  go  to  the  cemetery  with  the  rest.  I  move 
that  the  report  be  agreed  to. 

The  President  put  the  question,  and  the  motion  to  agree  to  the 
report  of  the  committee  was  carried. 

Mr.  Goodelle,  from  the  Committee  on  Suffrage,  to  which  was 
referred  the  proposed  amendment  introduced  by  Mr.  Lincoln  (intro- 
ductory No.  no),  entitled  "Proposed  constitutional  amendment  to 
amend  article  2  of  the  Constitution,  relating  to  female  suffrage," 
reports  adversely  thereto. 

The  President  put  the  question,  and  the  report  of  the  committee 
was  adopted. 

Mr.  Goodelle,  from  the  Committee  on  Suffrage,  to  which  was 
referred  the  proposed  amendment  introduced  by  Mr.  McKinstry 
(introductory  No.  88),  entitled  "  Proposed  constitutional  amendment 
to  amend  section  2  of  article  10  of  the  Constitution,  in  regard  to 
extending  the  right  of  suffrage  in  city,  town  and  village  elections  to 
all  citizens,"  reports  adversely  thereto. 

Mr.  McKinstry  —  I  do  not  wish  to  take  up  the  time  of  the  Con- 
vention now  on  this  amendment,  but  there  might  be  a  contingency 
in  which  I  would  like  to  be  heard  for  a  few  moments. 

The  President  —  You  are  entirely  in  order  if  you  wish  to  be 
heard  now. 

Mr.  McKinstry  —  This  refers  exclusively  to  local  elections.  I 
am  anxious  that  it  shall  not  be  disposed  of  just  at  this  moment. 
Without  meaning  any  disrespect  to  the  committee,  I  would  move 


August  2.]  CONSTITUTIONAL  CONVENTION.  45 

to  lay  this  report  upon  the  table,  so  that  I  may  bring  it  up  again 
if  I  wish  to,  though  that  is  very  doubtful,  but  if  I  do  want  to  bring 
it  up  again,  I  wish  to  have  the  right  to  do  so. 

Mr.  Goodelle  —  If  the  gentleman  desires  it,  I  second  his  sugges- 
tion, that  it  be  laid  upon  the  table. 

The  President  put  the  question  on  the  motion  of  Mr.  McKinstry 
to  lay  this  report  of  the  committee  on  the  table,  and  it  was  carried. 

Mr.  Goodelle,  from  the  Committee  on  Suffrage,  to  which  was 
referred  the  proposed  constitutional  amendment,  introduced  by 
Mr.  Moore  (introductory  No.  45),  to  amend  section  i  of  article  2  of 
the  Constitution,  relative  to  female  voters,  reports  adversely 
thereto. 

Mr.  Moore  —  I  do  not  know  that  I  should  ever  want  to  bring  it 
up  again,  but,  in  case  I  should,  I  would  like  to  leave  it  in  such  shape 
that  I  can,  and  rest.  I  move  that  the  report  be  laid  on  the  table. 

Mr.  Cochran  —  That  motion  not  having  yet  been  seconded,  I 
desire  to  say  that  I  sincerely  hope  it  will  not  prevail  — 

The  President  —  The  motion  is  not  debatable.  The  question  is, 
on  laying  this  report  on  the  table. 

Mr.  Goodelle  —  Mr.  President,  I  ask  that  the  report  be  read. 
Mr.  Moore  —  Mr.  President,  I  will  withdraw  the  motion. 

The  President  —  The  motion  to  lay  on  the  table  is  withdrawn, 
and  the  question  is,  therefore,  on  agreeing  to  the  adverse  report 
of  the  committee. 

The  President  put  the  question  and  the  report  of  the  committee 
was  adopted. 

Mr.  Goodelle,  from  the  Committee  on  Suffrage,  to  which  was 
referred  the  proposed  constitutional  amendment  introduced  by  Mr. 
Bigelow  (introductory  No.  232),  entitled  "  Proposed  constitutional 
amendment  to  amend  section  i  of  article  2  of  the  Constitution  in 
relation  to  female  suffrage,"  reports  adversely  thereto. 

Mr.  Goodelle  —  At  the  request  of  Mr.  Bigelow,  I  ask  that  the 
report  be  laid  upon  the  table.  I  make  that  motion. 

The  President  put  the  question,  and  the  report  of  the  committee 
was  laid  on  the  table. 

Mr.  Goodelle,  from  the  Committee  on  Suffrage,  to  which  was 
referred  the  proposed  constitutional  amendment  introduced  by 
Mr.  Tucker  (introductory  No.  194),  entitled  "  Proposed  constitu- 
tional amendment  to  amend  article  2  of  the  Constitution,  so  as  to 


46  REVISED  RECORD.  [Thursday, 

separately  submit  to  the  electors   of  this   State  the  question  of 
woman's  suffrage,"  reports  adversely  thereto. 

Mr.  Goodelle  —  By  the  unanimous  request  of  the  Committee  on 
Suffrage,  as  well  as  of  the  proposer  of  this  amendment,  I  ask  that 
the  consideration  of  this  question  be  made  a  special  order  for  next 
Wednesday  evening.  I  make  a  motion  to  that  effect. 

Mr.  Tucker  —  I  desire,  on  behalf  of  myself,  as  a  minority  member 
of  that  committee,  to  present  a  minority  report. 

The  President  —  Mr.  Tucker  presents  a  minority  report,  which, 
under  the  rules,  will  be  printed  and  laid  on  the  desks  of  the  mem- 
bers. The  question  before  the  House  is  Mr.  Goodelle's  motion 
that  the  adverse  report  of  the  committee  be  made  a  special  order 
for  next  Wednesday  evening. 

Mr.  Cochran  —  I  agree  with  the  chairman  of  the  committee  that 
the  Committee  on  Suffrage  unanimously  directed  him  to  request 
this  Convention  to  make  this  particular  proposed  amendment  a 
special  order  for  next  Wednesday  evening;  but,  sir,  it  was  done  with 
the  understanding  that  all  of  these  adverse  reports  should  first  be 
disposed  of.  Our  object  in  having  that  understanding  was  this; 
that,  if  these  adverse  reports  are  lying  on  the  table  after  this  pro- 
posed amendment  is  discussed  by  the  Convention,  and  the  Conven- 
tion should  then  agree  with  the  adverse  report,  it  would  be 
obliged  to  go  twice  over  the  matter  (as  we  have  already  laid  two  on 
the  table),  which  we  are  to  discuss  on  next  Wednesday  evening. 
I  submit  that  this  entire  matter  should  come  before  the  Convention 
once  for  all  and  be  disposed  of  one  way  or  the  other.  We  do  not 
want  to  be  occupying  our  time  in  discussing  the  same  question  two 
or  three  times  over.  I,  therefore,  move  that  the  motion  to  make 
this  a  special  order  for  Wednesday  evening  next,  be  laid  on  the 
table  until  I  have  an  opportunity  of  moving  a  reconsideration  of  the 
votes  which  laid  the  other  two  amendments  on  the  table.  If  this 
motion  to  make  this  a  special  order  for  next  Wednesday  evening  is 
laid  on  the  table,  I  will  immediately  move  a  reconsideration  of  the 
votes  by  which  the  other  two  adverse  reports  were  laid  on  the  table, 
so  that  we  may  have  them  disposed  of  this  morning. 

The  President  put  the  question  on  the  motion  of  Mr.  Cochran  to 
lay  the  motion  of  Mr.  Goodelle,  providing  that  the  report  of  the 
Committee  on  Suffrage  be  made  a  special  order  for  Wednesday 
evening  next,  on  the  table,  and  it  was  lost. 

The  President  —  The  question  now  recurs  on  the  motion  of  Mr. 
Goodelle  to  make  this  a  special  order  for  next  Wednesday  evening. 
Gentlemen  will  remember  that  it  requires  a  two-thirds  vote. 


August  2.]  CONSTITUTIONAL  CONVENTION.  47 

Mr.  Becker  —  I  desire  to  raise  a  point  of  order  in  reference  to  this 
amendment  —  not  specifically  for  the  purpose  of  having  it  decided, 
but  so  that  when  the  matter  comes  up  for  consideration  at  a  special 
session  for  that  purpose,  the  point  of  order  will,  in  the  meantime, 
have  been  considered  —  I  raise  the  point  of  order,  which  I  will  sub- 
sequently withdraw  only  to  raise  it  again  at  the  special  session,  that 
this  method  which  is  provided  by  this  bill,  of  submitting  the  question 
to  the  voters,  whether  something  shall  be  done  or  not,  is  not  per- 
missible under  the  limitation  imposed  upon  this  Convention  under 
the  present  constitutional  provision.  The  Constitution  provides 
two  methods  of  amending.  One  is  through  the  operation  of  legis- 
lative action  at  two  successive  sessions,  and  the  other  is  through  the 
operation  of  the  Convention.  Now,  my  point  of  order  is,  that  the 
only  way  in  which  any  matter  can  be  brought  before  the  people  is  by 
a  specific  amendment  to  the  Constitution,  and  not  by  dodging  the 
question  in  this  way  and  submitting  it  as  a  separate  question  of 
whether  this  or  that  shall  be  done,  but  an  amendment,  positive  in  its 
terms,  must  be  proposed  to  be  voted  upon  and  adopted,  or  to  be 
voted  against  and  rejected,  by  the  people,  under  the  present  existing 
organic  law.  I  withdraw  my  point  cf  order,  stating  that  I  will  raise 
it  again  when  this  matter  comes  up  at  the  special  session,  asking 
that  Mr.  Tucker  and  the  other  gentlemen  who  have  this  matter  in 
charge  will,  in  the  meantime,  give  it  some  consideration. 

The  President  put  the  question  on  the  motion  of  Mr.  Goodelle, 
making  the  consideration  of  the  subject  a  special  order  for  Wednes- 
day evening  next,  and  it  was  carried  by  more  than  a  two-thirds  vote. 

Mr.  Goodelle,  from  the  Committee  on  Suffrage,  to  which  was 
referred  the  proposed  amendment  introduced  by  Mr.  Bigelow 
(introductory  No.  288),  entitled  "  Proposed  constitutional  amend- 
ment to  secure  proportionate  representation,"  reports  the  same  to 
the  Convention,  with  the  recommendation  that  it  be  referred  to  the 
Committee  on  Legislature,  its  Organization  and  Apportionment, 
and  that  the  Committee  on  Suffrage  be  discharged  from  further 
consideration  of  the  same. 

The  President  put  the  question  on  the  recommendation  and 
report  of  the  committee,  and  it  was  agreed  to. 

Mr.  Goodelle,  from  the  Committee  on  Suffrage,  to  which  was 
referred  the  proposed  amendment  introduced  by  Mr.  Tucker  (intro- 
ductory No.  193),  entitled  "  Proposed  constitutional  amendment  to 
amend  article  I  of  the  Constitution  providing  against  property  quali- 
fications for  voting  or  holding  office,"  reports  adversely  thereto. 


48  REVISED  RECORD.  [Thursday, 

Mr.  Goodelle  —  I  move  that  the  report  be  agreed  to.  Perhaps 
Mr.  Tucker  desires  to  say  something  on  it. 

The  President — Does  Mr.  Tucker  desire  to  be  heard? 

There  being  no  response,  the  President  put  the  question,  and  the 
report  of  the  committee  was  agreed  to. 

Mr.  Peck  —  Would  it  be  in  order  now  for  the  Convention  to  take 
up  these  two  proposed  constitutional  amendments  which  have  been 
laid  on  the  table,  but  which  refer  to  the  same  matter  that  has  now 
been  made  a  special  order  for  next  Wednesday  evening,  and  send 
them  to  that  same  evening  in  connection  with  that  same  special 
order? 

The  President  —  The  Chair  is  of  the  opinion  that  it  would  be  in 
order. 

Mr.  Peck — I  then  move  that  we  take  from  the  table  these  two 
proposed  constitutional  amendments,  of  these  two  reports  from  the 
Committee  on  Suffrage,  and  that  they  be  considered  at  the  same 
time  with  the  special  order  already  set  down  for  next  Wednesday 
evening. 

Mr.  Cochran  —  I  sincerely  hope,  for  reasons  that  I  have  already 
stated,  that  this  motion  will  prevail.  I  might  say  to  the  Conven- 
tion that  the  Suffrage  Committee  —  I  do  not  desire  to  reflect  on  the 
Judiciary  Committee  —  did  not  feel  justified  in  reporting  a  number 
of  amendments  adversely  in  one  report.  We  felt  that  we  should 
give  every  man  who  had  proposed  an  amendment  an  opportunity  to 
be  heard  in  this  body  if  he  desired  it,  and  we  feel  now  that  if  there 
is  anything  to  be  said  on  this  subject  it  should  all  be  said  on  the 
same  evening,  and  I  trust  this  motion  will  prevail. 

Mr.  Goodelle  —  I  desire  to  amend  the  motion  by  adding  that 
Mr.  McKinstry's  amendment  shall  be  the  first  subject  in  order  and 
Mr.  Bigelow's  the  second  one  in  order  before  taking  up  that  of 
Mr.  Tucker. 

Mr.  Peck  —  I  will  accept  this  suggestion  and  incorporate  it  in 
my  motion. 

Mr.  Moore  —  I  move  to  amend  the  motion  of  Mr.  Peck,  by 
including  my  proposed  amendment,  No.  181. 

The  President  —  Your  proposed  amendment  has  been  brushed 
aside,  as  the  adverse  report  has  been  agreed  to. 

Mr.  Dean  —  The  action  of  this  Convention  was  predicated  upon 
the  proposition  that  what  has  been  done  was  to  be  done,  and  it 
seems  to  me  that  we  cannot  act  in  good  faith  by  any  such  arrange- 
ment at  this  time. 


August  2.]  CONSTITUTIONAL  CONVENTION.  49 

Mr.  Lauterbach  —  The  understanding  that  was  arrived  at  unani- 
mously in  the  committee  has  been  correctly  expressed,  and  it  was 
and  is  the  unanimous  desire  of  every  member  of  the  Suffrage  Com- 
mittee that  the  broad  question  that  is  to  be  presented  shall  be  in 
such  situation  as  to  be  presented  as  clearly  as  possible  and  without 
the  impediment  in  the  discussions  that  might  arise  from  treating 
questions  that  are  not  as  broad  as  the  broadest  feature  of  the  propo- 
sition can  possibly  be.  The  two  proposed  amendments  sought  to 
be  discussed  at  the  same  time  as  the  broad,  all-embracing  amend- 
ment of  Mr.  Tucker  are  as  follows:  Mr.  McKinstry's  proposition, 
which  refers,  I  think,  to  voting  at  municipal  and  village  elections, 
which  is  a  limited  branch  of  the  general  subject.  Mr.  Bigelow's  is 
one  by  which  it  is  sought  to  leave  to  a  single  Legislature  the  deter- 
mination of  a  question  which,  under  the  present  Constitution,  and 
probably  under  the  Constitution  as  it  is  to  be  amended,  would  be 
left  to  consecutive  Legislatures  and  then  to  a  vote  of  the  people. 
That  is  a  matter  of  detail  and  of  form  and  method.  I  should  like 
to  have  the  subject  considered  in  its  broader  sense  first,  and  then  to 
have  these  subjects  that  are  in  the  nature  of  an  amendment  or  of 
limitation  discussed  subsequently.  It  appears  to  me  that  the  true 
order  of  procedure  —  if  these  other  two  matters  are  to  be  taken 
from  the  table  at  all  at  this  time  —  would  be  to  consider  the  Tucker 
amendment  first  and  have  the  discussion  proceed  on  those  lines, 
and  leave  the  discussion  of  other  limited  methods  to  be  entertained 
afterwards.  There  is  not  any  desire  to  extend  this  discussion 
beyond  its  proper  scope,  and  there  is  no  desire  to  have  the  Conven- 
tion's time  frittered  away  by  the  discussion  of  trivial  matters  instead 
of  the  broad  matter  which  has  excited  so  much  attention.  I,  there- 
fore, desire  to  amend  the  suggestion.  Do  you  press  the  matter, 
Mr.  Peck,  of  taking  from  the  table  these  two  propositions  at  the 
present  time? 

Mr.  Peck  —  I  do,  simply  to  have  everything  before  the  Conven- 
tion at  that  one  meeting. 

Mr.  Lauterbach  —  They  are  matters  of  detail. 

Mr.  Peck  —  It  seems  to  me  that  we  can  carry  the  details  with  the 
general  principle. 

The  President  —  All  that  remains  to  be  considered  are  these  three 
amendments. 

Mr.  Lauterbach  —  May  it  not  be  proper  instead  of  considering 
these  other  two  matters,  which  in  some  respect  might  interfere  with 
the  proper  discussion  of  the  Tucker  proposition  not  to  take  these 
4 


5o  REVISED  RECORD.  [Thursday, 

matters  from  the  table  at  this  time,  but  to  permit  either  Mr.  McKin- 
stry  or  Mr.  Bigelow  to  appeal  to  the  Convention  at  the  proper  time 
to  take  them  from  the  table.  If,  when  they  make  application,  it  shall 
appear  to  be  unwise  to  discuss  the  measures  at  all,  a  majority  of  the 
Convention  can  refuse  the  application.  Therefore,  there  is  no  injury 
done.  It  will  not  follow  that  if  these  matters  are  left  upon  the 
table  now  they  must  necessarily  be  discussed.  They  can  only 
be  discussed  if  a  majority  of  the  Convention  shall  permit  them  to 
be  taken  from  the  table.  If  the  Convention  shall  have  heard  these 
subjects  ad  nauseam  at  that  time,  they  will  refuse  to  take  them  from 
the  table.  But  is  it  not  just  to  not  impede  the  program  that  has 
been  laid  out  by  such  a  course  as  is  now  suggested?  I  hope  that 
the  proposition  now  to  take  from  the  table,  and  designate  as  special 
orders  the  two  projects  in  question,  will  not  prevail,  and  that  the 
Tucker  amendment  may,  by  itself,  remain  the  special  order  for  next 
Wednesday  evening. 

Mr.  Alvord  —  I  desire  to  say  that  I  heartily  agree  with  the 
gentleman  who  has  just  taken  his  seat,  and  I  for  one  pledge  myself 
now  and  here  that  if  the  majority  of  the  committee  succeed  in  carry- 
ing the  original  proposition  I  will  with  both  hands  give  the  oppor- 
tunity to  those  who  desire  to  bring  up  the  lesser  propositions  which 
now  lie  on  the  table.  I  trust,  therefore,  that  the  motion  to  recon- 
sider at  this  time  will  not  prevail. 

Mr.  Peck  —  In  deference  to  the  suggestions  of  more  experienced 
persons  than  myself  in  legislative  matters,  I  will  withdraw  my 
motion,  although  it  seems  to  me  to  be  an  improper  division  of  the 
business  to  discuss  the  main  question  and  leave  the  other  matters  on 
the  table. 

Mr.  McClure  —  I  desire  to  support  Mr.  Lauterbach's  position, 
the  main  question  being  Mr.  Tucker's  amendme'nt,  and  the  only  one 
that  I  think  will  ever  be  discussed  in  connection  with  the  question. 

Mr.  Francis  —  I  beg  leave  to  present,  from  the  Committee  on 
Preamble  and  Bill  of  Rights,  two  reports,  one  of  them  special,  upon 
a  cognate  subject. 

Mr.  Francis,  from  the  Committee  on  Preamble  and  Bill  of  Rights, 
to  which  was  referred  the  proposed  constitutional  amendment  intro- 
duced by  Mr.  Marks  (introductory  No.  364),  entitled  "  Proposed 
constitutional  amendment  to  section  7  of  article  i,  relating  to  the 
taking  of  private  property  for  public  uses,"  reports  in  favor  of  the 
passage  of  the  same  with  some  amendments. 

Mr.  Francis  made  the  additional  special  report  in  connection 
therewith : 


August  2.]  CONSTITUTIONAL  CONVENTION.  51 

The  Committee  on  "  Preamble  and  Bill  of  Rights,"  to  whom  was 
referred  a  proposed  amendment  offered  by  Mr.  Marks  (introductory 
No.  364),  but  not  printed,  report  the  same  favorably,  with  an 
amendment,  striking  out  the  words  "  the  owner  of  the  property," 
and  inserting  in  the  place  thereof  the  words,  "  either  party  in  inter- 
est," so  that  the  proposed  amendment  shall  read  as  follows: 

"  Section  7.  When  private  property  shall  be  taken  for  any  public 
use,  the  compensation  to  be  made  therefor,  when  such  compensation 
is  not  made  by  the  State,  shall  be  ascertained  by  a  jury,  when 
required  by  either  party  in  interest,  and  if  not  so  required,  such 
compensation  shall  be  ascertained  by  not  less  than  three  commis- 
sioners appointed  by  a  court  of  record,  as  shall  be  prescribed  by  law. 

Private  roads  may  be  opened  in  the  manner  to  be  prescribed  by 
law;  but  in  every  case  the  necessity  of  the  road,  and  the  amount  of 
all  damage  to  be  sustained  by  the  opening  thereof,  shall  be  first 
determined  by  a  jury  .of  freeholders,  and  such  amount,  together  with 
the  expenses  of  the  proceeding,  shall  be  paid  by  the  person  to  be 
benefited." 

It  is  proper  to  state,  for  the  information  of  the  Convention,  that 
Mr.  Marks  requested  an  adverse  report  from  the  committee  on  his 
proposed  amendment,  but  it  did  not  appear  to  the  committee  that 
favorable  action  on  the  principle,  only  extending  it  to  embrace  the 
two  parties  to  the  proceeding,  instead  of  confining  it  to  one,  could 
be  fairly  construed  as  an  adverse  decision,  to  be  reported  as  such  to 
this  Convention. 

With  this  explanation,  the  amendment,  as  agreed  upon  by  a 
majority  of  the  committee,  is  hereby  submitted  for  the  considera- 
tion and  action  of  the  Convention. 

JOHN  M.  FRANCIS, 

Chairman. 

Mr.  Alvord  —  I  desire  to  be  recorded  at  the  Secretary's  desk  in 
opposition  to  the  proposition  from  the  committee. 

The  President  —  Mr.  Alvord  wishes  it  to  be  understood  that  he 
dissents  from  this  report,  although  making  no  minority  report. 

Mr.  Marks  —  May  I  ask,  Mr.  President,  to  have  the  amendments 
read? 

The    President  —  The    Secretary    will    read    the    amendments 
reported  by  the  committee. 
The  Secretary  read  the  same. 

The  President  —  Referred  to  the  Committee  of  the  Whole. 
Mr.  Francis  —  I  ask  that  the  special  report  be  read. 


52  REVISED  RECORD.  [Thursday, 

The  President  —  The  Secretary,  in  accordance  with  the  request 
of  the  chairman,  will  now  read  the  special  report. 

The  Secretary  read  the  same. 

Mr.  Marks  —  As  I  understand  it,  the  committee  reported  favor- 
ably upon  my  amendment,  and  said  in  their  special  report  that  they 
did  not  think  my  request  for  an  adverse  report  should  be  granted 
because  it  was  not  a  subject  for  an  adverse  report.  I  requested  the 
committee  to  make  an  adverse  report  on  my  proposition.  I  do  not 
think  my  amendment  ought  to  be  reported  favorably,  with  some 
amendments  of  the  committee's,  when  the  amendments  kill  the 
very  object  which  I  had  in  view  in  introducing  the  first  one. 

The  President  —  The  matter  has  gone  to  the  Committee  of  the 
Whole,  Mr.  Marks. 

Mr.  Veeder  —  Is  it  in  order  to  state  that  Mr.  Marks  is  mistaken 
about  what  occurred  in  the  committee? 

The  President  —  Yes,  as  a  matter  of  privilege. 

Mr.  Veeder  —  The  fact  obtains,  as  I  understand,  in  some  of  these 
committees  to  adopt  a  resolution  that,  if  the  committee  report,  they 
will  report  adversely.  But  until  the  committees  do  determine  to 
report  no  demand  can  be  made  on  the  committee.  Therefore, 
Mr.  Marks's  request  would  not  apply  in  this  case,  because  the  com- 
mittee never  agreed  to  report  adversely. 

The  President  —  Mr.  Marks  will  undoubtedly  be  heard  before  the 
Committee  of  the  Whole.  Are  there  any  reports  from  any  select 
committees?  The  Chair  will  call  attention  to  the  situation  in  which 
the  matter  of  the  special  order  of  the  suffrage  hearing  has  been 
left.  It  has  been  made  a  special  order  for  Wednesday  evening  only, 
and,  unless  further  order  is  made,  it  is  limited  to  that  evening  only. 

Mr.  Alvord  —  I  move  you,  sir,  that  we  add  in  addition  thereto 
the  words  "  and  that  the  same  shall  be  continued  on  every  succeed- 
,  ing  evening  until  it  is  disposed  of." 

Mr.  Cochran  —  I  second  that  motion. 

Mr.  Dickey  —  I  would  like  to  inquire,  for  information,  whether 
that  would  necessitate  the  sitting  on  additional  evenings,  such  as 
Friday  and  Saturday  and  Monday  evenings? 

The  President  —  It  means  legislative  or  Constitutional  Conven- 
tion evenings,  I  suppose.  The  effect  of  this  would  seem  to  be  to 
provide  for  unlimited  debate.  What  the  Chair  wanted  to  call  atten- 
tion to  is  whether  the  Convention  desires  to  bring  into  operation 
rule  56,  prescribing  some  limit  of  debate,  longer  or  shorter. 


August  2.]  CONSTITUTIONAL  CONVENTION.  53 

Mr.  McMillan  —  I  move  to  amend  by  referring  the  resolution  to 
the  Committee  on  Rules,  with  a  request  that  they  fix  a  limited 
time  for  the  debate,  and  report  to  this  Convention. 

The  President  —  The  Committee  on  Rules  has  no  power  to  fix 
the  time  of  debate. 

Mr.  Bowers  —  I  see  no  reason  for  requesting  the  services  of  the 
Committee  on  Rules  in  this  matter.  I  see  no  reason  why  we  should 
not  proceed  under  Mr.  Alvord's  motion,  and  debate  this  adverse 
report  until  such  time  as  the  Convention  pleases.  I  see  no  reason 
why,  on  every  important  question  we  should  proceed  at  the  outset 
to  limit  debate.  I  hope  the  Convention  will  not  make  such  an  order 
until  we  ascertain  from  the  character  of  the  debate  that  a  limit 
should  be  fixed. 

Mr.  Dean  —  I  am  satisfied  that  there  will  be  no  abuse  of  the 
privileges  of  the  Convention  in  the  discussion  of  the  suffrage  ques- 
tion. I  am  somewhat  familiar  with  the  gentlemen  interested  in  this 
question,  and  I  know  there  will  be  no  disposition  to  impose  upon 
the  good  nature  of  the  Convention.  I,  therefore,  hope  that  the 
resolution  will  not  prevail. 

Mr.  Cochran  —  I  might  say,  sir,  that  when  this  matter  was 
originally  brought  up  before  the  Committee  on  Suffrage  the  ques- 
tion was  there  discussed  as  to  whether  any  limit  should  be  placed 
by  the  committee  on  the  discussion  of  this  important  question.  We 
decided  that  there  should  be  no  limit,  for  the  reason  that  whatever 
arguments  could  be  made,  either  for  or  against  this  proposition, 
should  be  presented  fully.  I  do  not  think  that  any  subject  has  been 
discussed  before  this  Convention  so  that  its  time  has  been  wasted 
or  the  privilege  of  the  floor  abused,  and  I,  therefore,  think,  as 
Mr.  Bowers  has  suggested,  that  no  limit  should  be  placed  on  the 
debate. 

Mr.  Moore  —  I  hope  the  motion  will  not  prevail.  I  believe  this 
Convention  is  perfectly  able  to  take  care  of  itself  without  running 
every  few  minutes  into  the  nursery  of  the  Committee  on  Rules. 
I  believe  that  if  the  committee  see  any  disposition  to  abuse  the  good 
nature  and  leniency  of  the  Convention  in  the  debate  upon  this 
most  important  subject  it  can  find  a  way  to  remedy  it  and  to  shut 
off  all  obnoxious  debate.  I  certainly  hope  the  resolution  to  limit 
debate  upon  this  question  will  not  prevail. 

Mr.  McMillan  —  I  desire  to  withdraw  my  amendment.  It  was 
made  for  the  purpose  of  protecting  those  who  desired  to  discuss 
this  question.  I  am  perfectly  content  to  leave  with  the  Convention 
the  previous  question. 


54  REVISED  RECORD.  [Thursday, 

Mr.  Goodelle  —  I  would  like  to  inquire  what  the  motion  is  before 
the  House? 

The  President  —  The  motion  is  that  the  reports  which  have  been 
made  a  special  order  for  Wednesday  evening  be  also  a  special 
order  for  each  succeeding  evening  on  which  the  Convention  sits 
until  the  subject  is  disposed  of. 

Mr.  Goodelle  —  And  the  motion  does  not  involve  a  limit  of  the 
time? 

The  President  —  No,  sir ;  it  removes  it. 

Mr.  Goodelle  —  That  is  what  I  desired.  The  committee  did  not 
wish  that  the  debate  should  be  at  all  limited. 

The  President  —  It  leaves  the  matter  subject  to  the  previous  ques- 
tion, to  be  moved  by  the  gentleman  from  Cattaraugus,  or  any  other 
gentleman. 

Mr.  Barhite  —  I  would  like  to  ask  whether  under  this  motion  the 
Convention  will  be  obliged  to  finish  the  consideration  of  the  ques- 
tion without  any  intervening  evening?  My  idea  is  that  it  may 
appear,  after  we  enter  upon  that  debate,  that  it  might  be  all  right 
and  proper  to  adjourn  the  debate,  and  I  do  not  think  this  Conven- 
tion should  tie  itself  up  in  that  regard,  and  so  I  would  like  to  ask 
whether  under  this  motion  it  would  not  be  possible  to  lay  the 
subject  over  for  a  week  or  two  weeks. 

The  President  —  The  Chair  understands  that  it  will  go  on  from 
evening  to  evening. 

Mr.  Alvord  —  I  desire  to  say,  before  the  Chair  decides  this  ques- 
tion, that  the  Convention  always  has  the  power  in  their  own  hands 
to  direct  on  each  occasion  what  they  desire  to  do,  and  that,  there- 
fore, a  motion  to  lay  upon  the  table  the  present  subject,  if  it  shall 
come  up,  will,  with  the  votes  of  the  majority  of  the  Convention,  be 
sufficient  to  carry  it  over  the  night. 

The  President  —  But  unless  otherwise  ordered  the  effect  of  the 
motion  will  be  to  carry  the  matter  on  from  evening  to  evening. 

The  President  put  the  question  on  Mr.  Alvord's  motion,  and  it 
was  carried. 

Mr.  Veeder  —  I  desire  to  move  that  Document  No.  36,  which  is 
the  report  of  the  minority  of  the  Committee  on  Preamble  upon  the 
subject  of  limitation  of  damages  in  accidents  causing  death,  be 
referred  to  the  Committee  of  the  Whole  that  shall  consider  general 
order  No.  15,  which  is  an  adverse  report.  I  will  say  that,  from  an 
examination  of  the  rules,  I  know  of  no  other  way  for  its  considera- 
tion in  connection  with  the  adverse  report,  and,  that  being  disagreed 


August  2.]  CONSTITUTIONAL  CONVENTION.  55 

to,  it  leaves  the  original  proposition  of  Mr.  Tucker's  before  the 
Convention,  and  it  has  gone  on  general  orders.  Now,  to  consider 
the  minority  report,  I  assumed  that  it  was  necessary  to  get  it  before 
the  same  Committee  of  the  Whole. 

The  President  —  Will  Mr.  Veeder  please  restate  his  motion? 

Mr.  Veeder  —  My  motion  is  that  Document  No.  36,  being  the 
report  of  the  minority  of  the  Committee  on  Preamble,  be  consid- 
ered in  the  same  Committee  of  the  Whole  as  proposition  No.  192 
(introductory  No.  191),  which  is  upon  general  orders  as  No.  15. 

The  President  —  Are  they  not  both  on  general  orders? 

Mr.  Veeder  —  No,  sir;  I  do  not  understand  that  they  are.  Docu- 
ment No.  36  is  not  on  general  orders.  It  is  not  on  the  calendar. 

The  President  —  It  was  certainly  intended  to  be. 
Mr.  Moore  —  If  that  motion  of  Mr.  Veeder's  requires  a  second, 
I  will  second  it. 

Mr.  Alvord  —  It  is  already  on  general  orders. 

Mr.  Veeder  —  It  has  not  been  so  indicated  by  the  Secretary.  It 
is  not  on  the  calendar. 

The  President — Mr.  Veeder  moves  that  the  minority  report,  in 
respect  to  Document  No.  36,  be  referred  to  the  Committee  of  the 
Whole,  in  connection  with  general  order  No.  15,  which  carries  the 
majority  report. 

Mr.  C.  H.  Truax  —  Mr.  President,  I  ask  to  amend  by  striking  out 
the  document  and  inserting  the  following: 

'*  Whenever  the.  death  of  a  person  shall  be  caused  by  wrongful 
act,  neglect  or  default,  and  the  act,  neglect  or  default  is  such  as 
would,  if  death  had  not  ensued,  have  entitled  the  party  injured  to 
maintain  an  action  and  recover  damages  in  respect  thereof,  then  and 
in  every  such  case  the  person  who,  or  the  corporation  which,  would 
have  been  liable,  if  death  had  not  ensued,  shall  be  liable  to  an 
action  for  damages,  notwithstanding  the  death  of  the  person 
injured,  and  although  the  death  of  the  person  injured  shall  have 
been  caused  under  such  circumstances  as  amount  in  law  to  felony. 
Every  such  action  shall  be  brought  by  and  in  the  names  of  the 
personal  representatives. of  such  deceased  person,  and  in  every  such 
action  the  jury  may  give  such  damages  as  may  be  just  and  fair, 
with  reference  to  the  pecuniary  injury  resulting  from  such  death, 
to  the  husband  or  wife  and  next  of  kin  of  such  deceased  persons. 
The  Legislature  shall  prescribe  for  whose  benefit  such  action  shall 
be  brought.  No  law  shall  be  passed  limiting  the  amount  to  be 
recovered  for  damages  to  person  or  property." 


56  REVISED  RECORD.  [Thursday, 

I  propose,  Mr.  President,  to  amend  the  minority  report  so  that 
it  shall  read  in  that  way. 

The  President  —  The  Chair  holds  that  that  will  have  to  be 
brought  up  in  Committee  of  the  Whole,  if  the  minority  report  is 
there  brought  up. 

The  President  then  put  the  question  on  the  motion  of  Mr. 
Veeder,  and  it  was  carried. 

Mr.  Marks  —  Mr.  President,  in  order  to  have  the  report  of  the 
Committee  on  Preamble  properly  before  the  Convention  when  we 
get  into  Committee  of  the  Whole,  I  should  like  to  have  my  amend- 
ment, which  I  presented  to  that  committee,  printed  and  placed  on 
the  desks  of  the  members.  The  amendment  which  I  have  presented 
to  that  committee  is  that  the  compensation  to  be  paid  to  the  owner 
of  property  shall  be  ascertained  by  a  jury  when  the  owner  of  the 
property  requires  it.  The  Committee  on  Preamble  have  seen  fit  to 
amend  that  amendment  and  report  it  favorably,  and  make  it,  when 
required  by  either  of  the  parties  in  interest.  I,  therefore,  move  that 
my  amendment  be  printed  and  considered  at  the  same  time  that  the 
report  of  that  committee  is  considered  in  the  Committee  of  the 
Whole. 

Mr.  Alvord  —  Mr.  President,  I  rise  to  a  point  of  order. 

The  President  —  Mr.  Alvord  will  state  his  point  of  order. 

Mr.  Alvord  —  My  point  of  order  is  that  every  proposition  that 
goes  to  a  committee  can  be  altered  and  modified  as  the  committee 
see  fit,  and  that  any  amendment  offered  before  a  committee  can  be 
accepted  or  rejected  by  the  committee  having  the  matter  it  refers 
to  under  consideration;  that  Mr.  Marks's  amendment  is  a  matter 
that  can  be  considered  in  the  Committee  of  the  Whole,  and  the 
gentleman  has  his  full  remedy  by  amending  the  report  of  the  com- 
mittee when  we  are  in  the  Committee  of  the  Whole,  to  suit  his 
peculiar  opinions,  and,  therefore,  the  gentleman's  motion  is  entirely 
out  of  order. 

The  President  —  Mr.  Alvord's  point  of  order  is  well  taken. 

Mr.  Jesse  Johnson  —  I  desire  to  give  notice  as  to  an  order  of 
business.  On  Tuesday  morning  the  Cities  Committee  will  move 
the  cities'  article  in  general  orders. 

Mr.  Vedder,  from  the  Committee  on  Legislative  Powers  and 
Duties,  to  which  was  referred  the  proposed  constitutional  amend- 
ment introduced  by  Mr.  Roche  (introductory  No.  116),  entitled 
"Proposed  constitutional  amendment  to  amend  section  18  of 
article  3,  by  adding  certain  subjects  to  those  which  the  Legislature 


August  2.]  CONSTITUTIONAL  CONVENTION.  57 

is  forbidden  to  pass  special  and  local  acts  on,"  reports  in  favor  of 
the  passage  of  the  same,  with  some  amendments,  and  it  was  referred 
to  the  Committee  of  the  Whole. 

The  Secretary  announced  the  meetings  of  standing  committees. 

On  motion  of  Mr.  Hill,  the  Convention  took  a  recess  until  eight 
o'clock  this  evening. 

EVENING  SESSION. 
Thursday  Evening,  August  2,  1894. 

The  Constitutional  Convention  of  the  State  of  New  York  met 
pursuant  to  recess,  in  the  Assembly  Chamber  in  the  Capitol,  at 
Albany,  N.  Y.,  Thursday,  August  2,  1894,  at  eight  o'clock  P.  M. 

President  Choate  called  the  Convention  to  order. 

Mr.  Cookinham  —  Mr.  President,  I  ask  that  Mr.  Goodelle  be 
excused  from  attendance  upon  the  Convention  to-morrow,  on 
account  of  important  business  engagements. 

The  President  put  the  question  on  the  request  of  Mr.  Goodelle 
to  be  excused  from  attendance,  and  he  was  so  excused. 

Mr.  Schumaker  —  Mr.  President,  I  ask  indefinite  leave  of  absence 
for  Mr.  Van  Denbergh,  on  account  of  sickness.  He  is  now  confined 
to  his  house. 

The  President  put  the  question  on  excusing  Mr.  Van  Denbergh 
from  attendance,  and  he  was  so  excused. 

Mr.  Hirschberg  —  Mr.  President,  I  ask  to  be  excused  from 
attendance  to-morrow,  on  account  of  sickness  in  my  family. 

The  President  put  the  question  on  the  request  of  Mr.  Hirsch- 
berg to  be  excused  from  attendance,  and  he  was  so  excused. 

Mr.  Cornwell  —  Mr.  President,  Mr.  Tibbetts  asks  to  be  excused 
from  attendance  to-morrow  on  account  of  illness  in  his  family. 

The  President  put  the  question  on  the  request  of  Mr.  Tibbetts  to 
be  excused  from  attendance,  and  he  was  so  excused. 

The  President  announced  the  following  committee,  appointed 
upon  Mr.  McClure's  motion,  as  the  Select  Committee  upon  the 
Preservation  of  the  State  Forests:  Mr.  McClure,  Mr.  Peabody, 
Mr.  C.  B.  McLaughlin,  Mr.  Mclntyre  and  Mr.  Mereness. 

The  President  —  The  business  which  is  made  a  special  order  for 
this  evening  is  the  report  of  the  Committee  on  Privileges  and  Elec- 
tions, relative  to  the  contest  in  the  Sixth  Senatorial  District;  and 
the  immediate  question  before  the  Convention  is  the  consideration 


58  REVISED  RECORD.  [Thursday, 

of  the  resolution  offered  by  that  committee  at  the  end  of  their  report, 
to  the  effect  that  the  sitting  members,  Messrs.  Riggs,  Curran,  Rod- 
erick, Mullen  and  Fitzgerald,  are  not  entitled,  as  delegates  from  the 
Sixth  Senatorial  District,  to  the  seats  now  occupied  by  them  in  the 
Convention,  and  that  Messrs.  Kinkel,  Pashley,  Deterling,  Nostrand 
and  Kurth  are  duly  elected  from  the  Sixth  Senatorial  District,  and 
are  entitled  to  the  seats  now  occupied  by  the  first-named  gentlemen. 

Mr.  Lester  —  Mr.  President,  moving  the  adoption  of  the  report 
of  the  Committee  on  Privileges  and  Elections,  it  seems  proper  that 
a  few  words  at  least  should  be  said  in  reference  to  the  questions 
involved  in  this,  probably  the  most  difficult  and  intricate  of  the 
contested  election  cases  that  have  engaged  the  attention  of  the  Con- 
vention; and,  inasmuch  as  it  was  my  duty,  in  company  with  other 
members  of  the  sub-committee,  to  take  the  testimony  upon  which 
this  report  is  based,  and  inasmuch  as  I  thus  had  an  opportunity  of 
hearing  the  evidence  given  by  the  witnesses,*  seeing  the  witnesses 
who  testified,  hearing  the  arguments  advanced  by  the  counsel  for 
the  respective  parties,  it  seems  proper  that  I  should  say  a  few  words 
upon  this  subject. 

The  testimony  taken  in  this  case  has  been  printed,  so  far  as  the 
oral  testimony  of  the  witnesses  is  concerned,  and  is  upon  the  desks 
of  the  members.  But  by  jar  the  greater  portion  of  the  testimony 
has  not  been  printed,  but  consists  of  the  exhibits  in  the  case:  the 
poll-lists,  the  registry  lists,  the  returns  of  the  inspectors  in  six  dis- 
tricts in  the  town  of  Gravesend  and  in  three  districts  in  the  town 
of  Castleton,  Richmond  county;  also  voluminous  records  in  pro- 
ceedings instituted  by  William  J.  Gaynor  against  John  Y.  McKane; 
the  record  of  the  punishment  for  contempt  of  McKane  and  Johnson 
and  others  for  the  violation  of  an  injunction  order,  and  the  record  of 
the  conviction  of  McKane  and  the  officers  in  charge  of  the  election 
of  different  crimes  in  connection  with  the  general  election  in 
November  last. 

Now,  sir,  I  suppose  there  can  be  no  doubt  in  regard  to  the  prin- 
ciples which  are  to  govern  the  Convention  in  the  disposition  of  this 
case.  It  was  laid  down  by  the  Court  of  Appeals  in  the  case  of  the 
People  ex  rel.  Judson  v.  Thacher  (55  N.  Y.,  525),  and  has  never  been 
questioned  since,  that  the  certificate  of  the  proper  officers  is  prima 
facie  evidence  of  the  election  to  a  public  office,  but  that  the  certifi- 
cate and  the  returns  upon  which  it  is  based  are  open  to  inquiry,  and 
the  returns  will  be  corrected  or  set  aside  so  far  as  they  are  shown 
to  be  erroneous,  if  necessary  to  promote  the  ends  of  justice,  and  that 
where  a  return  is  proved  to  be  so  uncertain  and  unreliable  that  its 
value  as  evidence  is  wholly  destroyed  and  justice  requires  its  rejec- 


August  2.]  CONSTITUTIONAL  CONVENTION.  59 

tion,  each  claimant  can  only  be  allowed  such  votes  as  the  other 
evidence  in  the  case  shows  that  he  received. 

This  principle  is  recognized  in  the  case  of  the  People  ex  rel.  Sta- 
pleton  et  al.  v.  Bell  (119  N.  Y.,  175),  in  which  it  was  held  that 
inspectors  of  election  were  simply  ministerial  officers  without  discre- 
tionary power  to  reject  the  vote  of  a  person,  who,  upon  being  chal- 
lenged, qualified  himself  to  vote  by  the  application  of  statutory  tests, 
in  which  case  the  court  says,  Judge  Grey  writing  the  opinion,  that 
election  returns  are  only  prima  facie  evidence,  and  may  be 
impeached  and  set  aside  for  errors  and  frauds. 

In  this  connection,  it  might  be  well  to  call  the  attention  of  the 
Convention  to  what  the  Court  of  Appeals  held,  in  the  case  of  the 
People  v.  Thatcher,  was  sufficient  evidence  of  irregularity  and  fraud 
to  call  for  the  entire  rejection  of  the  return  of  the  canvassers,  as 
evidence  of  the  vote  cast.  In  that  case  the  box  which  contained  the 
votes  for  the  office  of  mayor  of  the  city  of  Albany  was  the  third  box 
canvassed.  It  was  noticed  that  this  box  was  unlocked  during  the 
time  when  the  other  boxes  were  being  canvassed  and  stood  upon 
a  shelf  near  by.  When  the  other  boxes  had  been  finished  the  box 
containing  the  ballots  for  mayor  was  put  upon  the  table  and  the 
canvass  of  the  votes  in  that  box  was  begun.  Suddenly  the  lights 
were  extinguished,  and,  after  an  interval  of  darkness,  light  was 
procured  and  it  was  then  found,  upon  counting  the  ballots,  that  a 
number  of  ballots  had  been  abstracted.  The  number  of  votes,  as 
stated  in  the  return  of  the  inspectors,  was  652,  but  it  was  proved  that 
seventy-seven  more  votes  had  been  cast.  An  opportunity  to 
abstract  these  ballots  was  offered  by  the  box  having  been  unlocked 
during  the  time  the  lights  were  extinguished,  and  the  loss  of  these 
ballots  could  not  be  reasonably  accounted  for  upon  any  other 
theory  than  that  they  had  been  thus  fraudulently  taken.  Other  evi- 
dence in  the  case  established  the  fact  that  among  the  ballots  upon 
the  table  were  sixty-five  spurious  votes  which  were  counted  and 
returned  as  genuine.  In  disposing  of  the  case  the  court  says  that, 
although  but  sixty-five  spurious  votes  had  been  proved  to  have  been 
placed  in  the  box,  it  would  not  assume  that  that  was  the  limit  of 
the  number,  and  that  the  evidence  that  these  spurious  votes  had 
been  put  in  that  box  and  had  been  canvassed  and  included  in  the 
return  of  the  inspectors  was  sufficient  wholly  to  discredit  the  return 
and  to  make  it  worthless  as  evidence. 

Such,  then,  being  the  principles  upon  which  I  suppose  this  case 
is  to  be  disposed  of,  I  desire  to  call  the  attention  of  the  Convention 
briefly  to  the  facts  of  the  present  case. 

The  town  of  Gravesend  contains  six  election  districts,  which  were 


6o  REVISED  RECORD.  [Thursday, 

so  arranged  that  they  came  to  a  common  centre  at  the  town  hall., 
in  which  building  the  polls  of  all  the  districts  were  located.  Tem- 
porary partitions  were  erected  in  this  hall  so  as  to  make  six  differ- 
ent rooms  which  served  as  the  polling  places  for  the  six  different 
election  districts  of  the  town.  Each  of  these  polling  places  was 
about  twelve  by  fifteen  feet.  Each  contained  four  or  five  booths  for 
voters  and  the  tables  and  chairs  and  election  paraphernalia. 
Besides  these  things,  there  is  said  to  have  been  room  enough  for 
six  or  eight  voters  at  a  time.  Into  such  a  place,  the  returns  show 
went  between  sunrise  and  sunset  upon  the  day  of  the  last  general 
election,  1,512  voters  of  the  second  election  district  of  the  town 
of  Gravesend  and  cast  their  ballots.  Only  upon  one  or  two  occa- 
sions during  the  day  was  there  any  line  of  voters  in  front  of  this 
polling  place;  and  one  witness,  who  stood  in  front  of  the  building  for 
an  hour  and  a  half  or  two  hours,  did  not  see  any  people  going  in  or 
coming  out,  though  he  did  see  many  standing  outside.  Although 
the  census  taken  in  the  town  of  Gravesend  in  1892  showed  a  popu- 
lation of  8,418,  over  6,000  voters  were  registered,  and  over  3,500 
votes  cast  at  the  general  election  of  1893.  In  the  second  district 
the  voting  population  in  November,  1893,  was  variously  estimated 
by  the  contestant's  witnesses,  as  follows: 

Robert  Schimmerhorn 487 

John  W.  Pierce 450  to  500 

Charles  C.  Overton 425 

Charles  S.  Voorhees 487 

James  N.  Brewster,  not  over 500 

At  the  spring  election  in  1894,  which  was  a  hotly-contested  elec- 
tion, only  423  votes  were  cast. 

In  this  district  2,464  names  were  registered  and  1,512  votes 
returned  by  the  inspectors  as  having  been  cast  at  the  general  elec- 
tion in  1893,  all  but  ten  of  which  were  for  the  sitting  members. 
Robert  Burkhart,  who  voted  at  nine  P.  M.,  had  ticket  No.  724. 
James  N.  Brewster,  who  voted  at  three  P.  M.,  had  ticket  No.  1223. 

If  the  ballots  were  given  out  in  regular  order  as  they  ought  to 
have  been,  voting  must  have  taken  place  at  the  rate  of  five  votes  per 
minute  up  to  nine  o'clock  A.  M.,  and  at  the  rate  of  about  two  and 
a  half  votes  per  minute  up  to  the  closing  of  the  polls. 

The  contestants  proved  the  result  of  an  experiment  which  seemed 
to  have  been  conducted  with  considerable  care  for  the  purpose  of 
ascertaining  the  greatest  possible  rapidity  with  which  votes  could 
be  cast  at  an  election,  where  the  requirements  of  the  ballot  reform 
law  were  observed.  The  result  of  this  experiment  indicated  that 


August  2.]  CONSTITUTIONAL  CONVENTION.  61 

twenty-seven  votes  in  twenty  minutes,  or  about  one  and  one-third 
votes  per  minute,  was  the  greatest  speed  attainable,  and  that  it 
would  doubtless  be  impracticable  to  maintain  this  speed  for  an 
entire  day.  On  the  other  hand,  the  contestees  proved  that  at  the 
last  town  election  in  Flatbush  1,685  votes  were  cast,  and  in  the 
opinion  of  the  witnesses  from  100  to  300  more  votes  might  have 
been  cast.  It  appears,  however,  that  in  the  Flatbush  election  eight 
districts  participated  and  each  district  had  a  separate  registry  list 
and  a  separate  clerk  in  charge- of  it.  The  great  majority  of  the 
voters  knew  in  what  election  district  they  resided  and  announced 
their  names  and  the  number  of  their  district  to  the  officer  in  charge. 
The  work  of  finding  their  names  and  checking  them  off  was,  there- 
fore, greatly  expedited.  The  number  of  booths,  too,  was  greatly 
increased.  It  is  evident  that  the  rapidity  of  voting  under  such  con- 
ditions is  no  criterion  as  to  that  at  an  election  where  there  was  a 
single  registry  list  with  2,400  names  upon  it  and  a  single  clerk  in 
charge.  But,  even  under  these  conditions,  no  such  speed  as  that 
indicated  by  the  testimony  of  Robert  Burkhart  would  have  been 
possible. 

This  registry  list  which  I  have  here  contains  between  2,400  and 
2,500  names. 

The  President  —  Is  it  the  original  registry  list,  Mr.  Lester? 

Mr.  Lester  —  This  is  the  original  registry  list,  Mr.  President.  It 
was  written  in  a  book  which  was  indexed  through,  but  the  book 
was  entirely  inadequate  to  the  necessities  of  the  case  and  so  addi- 
tional leaves  were  inserted  in  this  manner.  I  find  that  under  the 
letter  M,  for  instance,  in  addition  to  the  two  pages  which  the  book 
gives  to  that  letter,  there  are  twelve  other  pages  inserted  upon  ordi- 
nary legal  cap  in  the  form  of  leaves.  These  names  are  not  arranged 
in  strict  alphabetical  order.  All  the  M's  are  grouped  together,  it  is 
true,  under  one  letter,  but  no  further  arrangement  in  alphabetical 
order  is  attempted.  This  book  contains  as  many  names  as  the  direc- 
tory of  a  populous  village.  It  is  written  in  a  fairly  legible  hand. 
But  the  clerk  in  charge  of  this  book,  if  he  performed  his  duty  upon 
election  day,  would  have  been  compelled  to  find  names  in  this  book 
at  the  rate  of  two  and  one-half  names  per  minute  from  the  rising  of 
the  sun  until  the  setting  of  the  sun;  a  feat  which  it  would  have 
been  impossible  for  any  human  being  to  perform.  This  book  we 
have  had  before  the  Committee  on  Privileges  and  Elections,  and  we 
have  made  several  experiments  there  for  the  purpose  of  ascertaining 
how  rapidly  it  is  practicable  for  a  person  to  find  names  in  it. 

I  am  satisfied  that  the  greatest  possible  speed  which  one  could 
attain  for  a  short  period  of  time,  a  person  who  was  entirely  familiar 


62  REVISED  RECORD.  [Thursday, 

with  the  record  itself,  would  be  about  one  name  per  minute,  thus 
reducing  the  possible  vote  in  this  district  of  Gravesend  to  612  votes 
on  the  day  of  the  last  general  election. 

This  registry  list  it  is  said,  was  made  up  in  great  part  by  a  police 
officer  and  some  other  person  going  about  Coney  Island  in  the 
month  of  August,  1893,  at  a  time  when  there  was  the  greatest  crowd 
of  people  there,  and  taking  the  names  of  everyone  employed  or 
found  about  any  of  the  hotels,  saloons  and  other  places  of  enter- 
tainment which  formed  the  principal  portion  of  the  buildings  at 
Coney  Island.  The  witness,  Charles  Foster,  who  swore  to  that  fact 
and  said  that  his  name  had  been  taken  down  by  the  police  officer, 
seems  to  be  corroborated  by  the  fact  that  Charles  Foster's  name  is 
found  upon  the  register,  although,  being  a  voter  in  the  city  of  New 
York  and  having  voted  in  the  city  of  New  York,  he  is  not  marked 
upon  this  register  as  having  voted  at  Gravesend. 

The  records  of  conviction  of  Richard  V.  B.  Newton  and  others 
were  produced  and  received  by  the  committee,  and  are  mentioned 
in  the  evidence  which  is  upon  the  tables  of  the  members.  Richard 
V.  B.  Newton,  a  justice  of  the  peace  of  the  town  of  Gravesend,  and 
the  three  inspectors  of  election  in  the  second  election  district,  were 
convicted  of  conspiracy  to  permit  persons  to  vote  who  were  not 
entitled  to  vote.  These  were  the  same  inspectors  who  were  in 
charge  of  the  polls  on  election  day,  and  thus  had  an  opportunity  to 
carry  out  the  purpose  of  their  conspiracy. 

John  Y.  McKane  and  Richard  V.  B.  Newton  excluded  Repub- 
lican watchers  from  the  polls  in  this  district,  and  in  so  doing  acted 
in  violation  of  an  injunction  of  Judge  Barnard,  and  were  afterwards 
punished  for  contempt  of  court.  The  question  of  the  regularity  of 
the  appointment  of  these  watchers  raised  by  the  contestees  was  also 
raised  in  the  contempt  proceedings,  but  did  not  prevent  the  punish- 
ment of  McKane  and  his  associates. 

Kenneth  F.  Sutherland,  a  justice  of  the  peace  of  the  town  of 
Gravesend,  a  resident  of  the  second  election  district,  whose  name 
appears  at  the  head  of  the  poll-list  as  having  cast  the  first  vote  in 
that  district  at  the  general  election  of  November,  1893,  was  after- 
ward convicted  of  having  induced  the  inspectors  to  make  a  fraudu- 
lent return.  Sutherland  signed  a  statement  which  was  read  to  the 
court  when  he  was  brought  up  for  sentence,  in  which  he  declares 
that  he  put  into  the  ballot-boxes  in  the  second  district  of  the  town 
of  Gravesend  somewhere  between  200  and  400  fraudulent  votes  at 
the  election  in  question. 

It  is  proper  to  state  that  the  contestees  introduced  evidence  in 
explanation  of  the  great  discrepancy  between  the  apparent  voting 


August  2.]  CONSTITUTIONAL  CONVENTION.  63 

population  of  Gravesend,  as  shown  bv  contestants'  witnesses,  and 
the  number  of  names  on  the  registry  lih:::s  and  the  number  of  votes 
cast,  to  show  that  there  was  a  large  transient  summer  population  at 
Coney  Island,  in  the  second  and  third  election  districts  composed 
of  waiters,  cooks  and  other  servants  and  employes  in  the  hotels  and 
saloons  which  abounded  there,  who  came  in  the  spring  and  early 
summer  and  remained  until  the  end  of  September,  but  many  of 
whom  claimed  Coney  Island  as  a  residence  and  were  accustomed  to 
return  there  in  November  for  the  purpose  of  voting. 

It  should  also  be  stated  that  the  contestees  strenuously  objected 
to  the  introduction  of  the  records  of  conviction  of  these  various 
election  officials  of  the  town  of  Gravesend  and  the  statement  of 
Sutherland,  on  the  ground  that  they  were  not  evidence  as  against 
the  contestees.  This  brings  up  a  somewhat  difficult  question. 
There  is  no  doubt  that  the  questions  whether  the  inspectors  of  elec- 
tion did  enter  into  a  conspiracy  to  permit  persons  to  vote  who  were 
not  entitled  to  vote;  whether  McKane  and  Newton  did  exclude 
Republican  watchers  from  the  polls;  whether  Sutherland  did  induce 
the  inspectors  of  election  to  make  a  fraudulent  return  and  finally 
whether  Sutherland  did  deposit  hundreds  of  fraudulent  ballots  in  the 
box,  are  all  questions  of  the  highest  materiality  in  this  investigation. 
But  if  it  were  necessary  that  the  commission  of  all  these  crimes 
should  be  proved  by  the  same  evidence  that  would  be  required  upon 
the  trial  of  indictments  against  these  officers  for  the  crimes  alleged 
to  have  been  committed  by  them,  the  committee  could  not  complete 
its  labor  during  the  lifetime  of  the  Convention.  Similar  questions 
requiring  similar  treatment  were  found  in  the  other  five  districts  of 
Gravesend  and  in  the  town  of  Castleton,  Richmond  county. 

The  printed  papers  in  the  contempt  proceedings  against  McKane 
and  Newton  alone  cover  458  pages,  and  that  is  a  mere  suggestion 
of  the  way  in  which  each  one  of  these  questions  would  amplify  if  it 
were  held  to  be  necessary  to  pursue  each  of  them  on  the  lines  of 
an  original  investigation.  McKane,  Newton,  Sutherland  and  the 
three  inspectors  in  the  second  election  district  of  Gravesend  are  all 
now  undergoing  imprisonment  for  their  crimes.  The  others  would 
doubtless  follow  the  example  of  Sutherland  and  refuse  to  give  any 
evidence  whatever  in  the  case,  claiming  their  constitutional  privi- 
lege, and  even  if  it  were  waived  the  punishment  that  this  Convention 
could  inflict  upon  them  for  a  refusal  to  testify  would  be  unworthy 
of  consideration  in  comparision  with  that  already  imposed;  in  fact 
the  Convention  could  not  practically  impose  any  punishment  upon 
them  whatever.  Therefore,  the  Convention  must  either  confess 
itself  powerless  in  the  premises  or  resort  to  some  other  method  of 


64  REVISED  RECORD.  [Thursday, 

determining  the  truth  than  through  the  narrow  avenues  of  common 
law  evidence.  The  common  law  itself  recognizes  the  propriety  of  a 
frequent  relaxation  of  its  rules  upon  the  principle  of  necessity,  and 
has  on  that  principle  admitted  testimony  that  ordinarily  would  have 
been  excluded.  Moreover,  it  is  well  settled  that,  in  such  inquiries  as 
the  present,  legislative  bodies  are  not  bound  by  strict  common-law 
rules. 

The  House,  it  has  been  said,  and  the  statement  is  certainly  not 
less  true  of  this  Convention,  is  "  as  well  a  council  of  State,  and  a 
court  of  equity  and  discretion,  as  court  of  law  and  justice,  and 
applies,  therefore,  the  legal  rules  of  evidence  rather  by  analogy  and 
according  to  their  spirit  than  with  the  technical  strictness  of  the 
ordinary  judicial  tribunals." 

In  a  controverted  election  case  tried  in  Philadelphia  in  1851  under 
a  special  statute  of  Pennsylvania,  the  learned  judge  who  heard  the 
case  said :  "  This  is  a  great  public  inquiry  in  which  the  community 
are  most  deeply  interested,  bearing  upon  and  affecting  rights  and 
the  exercise  of  them  that  lie  at  the  basis  of  our  whole  government. 
It  is  not  a  suit,  but  a  public  investigation."  And,  upon  that  ground, 
his  colleague  concurring,  he  set  aside  the  common-law  rule  upon  the 
subject  and  admitted  the  parties  to  the  record  to  testify. 

It  has  been  said  that  the  House  are  "  entitled  to  hear  and  weigh 
everything  advanced,  and  to  form  their  opinion  from  the  general 
conviction  arising  upon  the  whole  circumstances." 

"  Such  a  tribunal,  then,"  it  has  been  said,  "  is  not  to  be  circum- 
scribed by  the  narrow  technicalities  of  the  common  law." 

However  admirable  may  be  those  rules  that  limit  the  evidence 
upon  which  judges  and  courts  must  act ;  however  important  it  may 
be  that  these  institutions  of  the  sovereign  State  should  be  limited 
and  restricted  in  their  action,  when,  the  State,  in  its  sovereign 
capacity,  acts,  it  is  manifest  that  it  can  itself  regard  no  such 
restrictions. 

It  may  fear  for  its  ministers  that  they  may  err  and  shut  them  up 
as  far  as  practicable  from  error.  It  cannot  entertain  any  such 
doubts  as  to  its  own  action,  since  all  the  institutions  of  the  State 
must  rest  upon  its  wisdom  as  their  ultimate  foundation.  A  man  in 
the  management  of  his  own  affairs  turns  away  from  no  source  of 
information.  He  gets  the  best  information  he  can  from  ever} 
source,  and  then  acts  upon  it  with  the  greatest  wisdom  he  can  com- 
mand. So  the  sovereign  gathers  information  from  every  source, 
and  acts  in  respect  to  affairs  of  State  with  a  sovereign's  wisdom.' 
The  State  is  entitled  to  hear  and  weigh  everything.  In  the  light 
of  this  sovereign  right,  it  is  evident  that  legislative  committees,  in 


August  2.]  CONSTITUTIONAL  CONVENTION.  65 

receiving  in  like  cases  what  is  denominated  incompetent  evidence, 
are  not  wantonly  overriding  individual  and  public  rights  and  pre- 
senting a  spectacle  of  moral  turpitude;  on  the  contrary,  they  are 
asserting  and  exercising  the  prerogative  of  the  sovereign  to  hear 
and  weigh  everything.  Such  is  not  only  the  sovereign's  right,  but 
such  is  the  sovereign's  duty.  To  refrain  from  exercising  it  would 
make  the  State  a  just  object  of  contempt.  I  insist,  then,  that  this 
evidence  is  before  the  Convention,  and  rightly  before  it. 

The  committee  received  this  evidence,  and  it  is  printed  and  before 
the  Convention.  It  remains  for  the  Convention  to  weigh  it;  to  say 
what  effect  it  will  give  to  it,  and  what  it  will  conclude  from  it.  If  it 
is  insufficient  to  convince  the  minds  of  any  members  that  these 
crimes  were,  in  fact,  committed,  it  is  the  moral  duty  of  such  mem- 
bers not  to  infer  that  fact  from  the  proof;  but  if,  on  the  other  hand, 
it  does  lead  a  member  to  the  honest  belief  that  these  crimes  were 
in  fact  committed,  then  I  say  it  is  the  right,  nay,  more,  the  duty,  of 
that  member  to  act  upon  the  evidence  and  assume  the  facts  as 
proven. 

In  respect  to  the  effect  of  the  admission  of  the  statement,  or 
confession  as  it  is  called,  of  Sutherland,  to  the  effect  that  he,  with 
his  own  hands,  folded  and  fraudulently  placed  in  the  ballot-box  two 
lots  of  ballots,  each  containing  between  100  and  200  straight 
Democratic  ballots,  I  entertain  more  doubt,  for  I  feel,  personally, 
great  hesitation  in  assuming  any  facts  as  proven  by  the  unsworn 
statement  of  such  a  criminal  as  Sutherland.  But,  sir,  it  is  unneces- 
sary to  assume  that  the  statement  of  Sutherland  is  true  upon  the 
evidence  of  the  statement  itself.  If  the  Convention  assumes,  as  I 
believe  it  will  assume,  that  these  men  who  were  convicted  of  these 
various  crimes  were  guilty  of  the  crimes  with  which  they  were 
charged,  then  the  Convention  has  gone  far  enough  to  determine  the 
present  case.  If  Sutherland  was  guilty  of  inducing  the  inspectors  to 
make  a  false  return;  if  the  inspectors  themselves  conspired  to  per- 
mit persons  to  vote  who  were  not  entitled  to  vote,  then  these  facts 
are  sufficient  to  determine  the  action  of  the  Convention;  and  the 
mere  fact  that  these  inspectors  were  guilty  of  this  conspiracy,  in 
connection  with  the  other  uncontradicted  proof  in  the  case,  is 
sufficient.  For,  sir,  it  is  one  of  the  commonest  presumptions  of 
law  that  where  a  criminal  intent  is  shown  to  exist  in  the  mind  of  a 
party,  and  the  party  has  an  opportunity  to  carry  out  his  criminal 
intent,  it  will  be  presumed  that  he  did  so  and  that  he  in  fact  com- 
mitted the  crime.  That  principle  is  one  of  the  most  common  appli- 
cation. I  have  in  my  mind  now  a  large  class  of  cases  touching  the 


66  REVISED  RECORD.  [Thursday, 

most  sacred  personal  rights  in  which  that  presumption  is  every  day 
invoked  for  the  purpose  of  determining  the  controversy;  where  when 
a  criminal  intent  is  shown  and  an  opportunity  for  carrying  out  that 
intent  is  proved  to  have  existed,  the  fact  of  the  crime  is  always 
inferred.  So  if  these  inspectors  of  election  were  guilty  of  conspiring 
to  permit  persons  to  vote  at  the  Gravesend  election  who  were  not 
entitled  to  vote,  and  they  afterwards,  being  in  charge  of  the  polls  as 
they  were  under  the  circumstances  that  existed  in  the  town  of 
Gravesend,  had  an  opportunity  to  carry  out  that  conspiracy,  then, 
sir,  it  is  the  duty  of  the  Convention  to  infer  that  the  conspiracy  was, 
in  fact,  carried  out,  and  that  they  were  guilty  of  the  crime  which  they 
conspired  to  perpetrate. 

But,  there  is  another  method  of  determining  this  case,  which  is, 
if  possible,  more  satisfactory  and  conclusive  than  the  one  which  I 
have  just  mentioned,  and  leads  inevitably  to  the  same  result.  When 
we  come  to  examine  the  records  of  this  election,  the  poll-lists  and 
registry  lists,  we  find  a  most  remarkable  series  of  facts.  We  find 
in  the  first  place  that  upon  the  poll-list  the  ballot  which  has  the 
highest  number  entered  upon  the  list  is  ballot  No.  1,512.  Now,  the 
inspectors  certify  that  1,512  votes  were  cast,  yet  there  are  sixty-six 
ballots  whose  numbers  do  not  appear  at  all  upon  the  list.  In 
thirty-one  instances  the  same  ballot  is  entered  upon  the  poll-list  as 
having  been  issued  to  two  different  persons  and  in  two  instances  as 
having  been  issued  to  three  different  persons.  These  duplicate  and 
triplicate  numbers  would  appear  much  oftener  were  it  not  for  the 
fact  that  many  numbers,  after  having  been  entered,  were  afterwards 
nearly  or  quite  obliterated  by  writing  other  different  numbers  over 
them  in  a  heavy  hand.  In  every  case,  so  far  as  it  is  possible  to 
determine,  these  changes  were  made  for  the  purpose  of  covering  up 
some  duplicate  number  by  the  use  of  a  number  that  had  been 
omitted.  This  is  the  original  poll-list  which  I  hold  in  my  hand. 
The  highest  number  upon  this  list  is  1,512,  and  the  inspectors 
return  that  1,512  ballots  were  cast,  and  yet  there  are  sixty-six  num- 
bers which  do  not  appear  upon  this  list  at  all.  Thirty-one  votes 
seem  to  have  been  issued  to  two  different  persons.  Now,  that  is 
a  manifest  physical  impossibility.  It  shows  to  that  extent  at  least 
this  record  is  not  a  true  record  of  the  events  which  took  place  at  the 
Gravesend  election.  Of  course  it  is  utterly  impossible  to  issue  the 
same  ballot  to  two  different  people,  and  yet  the  inspectors  returned 
that  that  was  done  in  thirty-one  instances  and  in  two  instances  it 
was  issued  to  three  different  people. 

Now,  when  we  come  to  arrange  the  ballots  in  consecutive  order 
and  compare  them  with  the  names  of  the  voters,  the  most  remark- 


August  2.]  CONSTITUTIONAL  CONVENTION.  67 

able  results  appear.  In  over  180  instances  this  arrangement  pro- 
duces groups  of  names  which  began  with  the  same  letter,  including 
from  two  to  eight  names  in  each  group.  In  the  last  175  votes  cast, 
twenty-four  such  groups  appear,  eighteen  of  two  names,  four  of 
three  names,  and  two  of  four  names. 

One  of  the  largest  groups  of  this  character  contains  seven  names, 
all  beginning  with  the  syllable  "  Me,"  another  group  contains  four, 
another  three,  and  eleven  groups  contain  two  names  each  beginning 
with  that  syllable;  so  that  out  of  a  total  of  seventy-one  names  begin- 
ning with  the  syllable  "  Me,"  more  than  one-half  voted  in  groups  of 
from  two  to  seven.  In  twenty-three  consecutive  votes,  beginning 
with  1 60,  fifteen  were  cast  by  "  Mc's."  Eight  voted  in  the  first  100 
votes  cast;  twenty-one  in  the  second  100;  ten  in  the  third  100; 
eleven  in  the  fourth  100,  and  the  remaining  twenty-one  were  dis- 
tributed through  1,112  votes  or  ballots.  In  two  instances  nearly  300 
consecutive  ballots  were  cast  without  any  "  Me  "  appearing. 

Instances  are  too  numerous  to  be  mentioned  where  several 
names  appear  upon  the  poll-list  in  the  precise  order  in  which  they 
occur  upon  the  registry.  In  one  instance  eleven  names  following 
each  other  consecutively  on  the  poll-list  are  taken  from  a  single 
page  of  the  registry,  first  going  down  the  page  and  then  back  up  it. 

Attention  should  be  here  called  to  the  explanation  attempted  to  be 
made  by  the  supposition  that  persons  might  have  drawn  off  from 
the  registry  lists  of  voters  who  had  not  come  to  vote,  and  that  they 
might  have  been  sent  for  and  brought  in  in  groups  as  they  appear 
on  the  poll-lists.  There  are  several  difficulties  in  the  way  of  this 
hypothesis,  beside  the  difficulty  of  the  entire  absence  of  any  testi- 
mony that  such  a  thing  was,  in  fact,  done.  If  the  registry  list  was 
used  for  any  such  purpose,  it  renders  still  more  highly  improbable 
the  proposition  that  the  clerk  in  charge  of  it  ever  did  find  these 
1,512  names  and  check  them  off  in  the  600  minutes  allotted  for  that 
purpose.  That  proposition,  under  the  most  favorable  conditions, 
is  too  great  a  strain  for  ordinary  credibility,  and  weighed  down  by 
such  an  additional  burden,  it  would  seem  past  the  belief  of  any 
rational  being.  But  do  the  members  of  the  Convention  believe 
that,  if  such  a  state  of  facts  existed,  the  astute  and  able  lawyers  who 
have  had  charge  of  the  contestees'  case  would  not  have  offered 
some  proof  of  it?  The  tables  made  by  William  Deterling,  in  which 
these  groups  of  names  were  pointed  out.  were  made  during  the 
prosecutions  of  election  officials  and  during  the  Senate  contests  of 
last  winter.  The  claim  of  the  contestants  based  upon  them  is  no 
new  one,  and  the  contestees  who  have  been  familiar  with  all  the 
details  of  this  controversy  from  the  time  it  arose  have  had  ample 


68  REVISED  RECORD.  [Thursday, 

time  to  procure  evidence  in  explanation  of  these  facts  if  it  were 
attainable.  Yet  not  one  of  these  supposed  votes  thus  challenged 
has  been  supported  by  the  production  of  the  voter  who  cast  it. 
Not  one  of  the  individuals  composing  any  of  these  suspicious  groups 
has  been  brought  forward  to  show  how  it  occurred,  and  that  men 
representing  such  names  actually  went  to  the  polls.  If  proof  of  a 
single  such  case  had  been  given,  the  explanation  would  have  had 
some  plausibility.  As  it  is,  it  has  none.  The  conclusion  is  irre- 
sistible that  the  statement  of  the  contestants'  counsel  is  true  "  that 
names  were  transferred  in  squads  or  in  platoons  from  the  registry 
list  to  the  poll-list." 

Singular  coincidences  will,  of  course,  occasionally  occur  in  prac- 
tice, where  all  the  proceedings  are  conducted  in  a  perfectly  legal, 
honest  and  orderly  manner,  but  an  examination  of  the  tables  of 
comparison,  prepared  by  William  Deterling  and  Deputy  Attorney 
Shepherd,  will  show  such  a  condition  of  affairs  as  is  utterly  incon- 
sistent with  any  theory,  except  that  the  voting  in  the  second  district 
of  Gravesend  at  the  general  election  in  November  last  was  a  com- 
plete farce,  and  that  the  poll-lists  and  the  returns  of  inspectors 
contained  nothing  but  the  results  of  continued  frauds  from  the  open- 
ing of  the  polls  to  their  close.  If  these  poll-lists  and  registry  lists 
were  all  the  evidence  in  the  case,  the  conclusion  of  fraud  sufficient 
to  damn  the  whole  proceedings  would  be  irresistible.  But,  in  addi- 
tion to  this  overwhelming  internal  evidence  of  fraud  in  the  registry 
and  poll  lists  is  the  proof  of  the  criminal  conduct  of  the  election 
officials  in  this  district  and  the  arrangements  so  evidently  made 
by  them  in  advance  for  the  better  carrying  out  of  their  criminal 
designs.  No  question  can  remain  in  the  mind  of  anyone  who 
seeks  simply  to  establish  the  truth. 

It  seems  unnecessary,  under  these  circumstances,  to  say  any- 
thing about  the  other  districts  of  Gravesend  and  the  three  districts 
of  the  town  of  Castleton.  Proof  was  offered  tending  to  show 
frauds  in  all  of  these  districts,  and  frauds  were  proved  in 
some  of  them  which  affected  the  vote  as  returned  by  the 
inspectors,  but,  as  this  second  district  of  Gravesend  exhibits 
the  most  extensive  and  flagrant  frauds  and  violations  of 
law  and  is  decisive  of  the  result,  it  seems  hardly  worth  while 
to  dwell  on  the  other  cases  in  .some,  at  least,  of  which  I  think  the 
frauds  might  not  call  for  the  rejection  of  the  entire  vote,  but  only 
a  deduction  of  the  fraudulent  votes  which  in  any  single  district 
would  be  insufficient  to  change  the  result,  though,  in  the  aggregate, 
would  be  enough  to  accomplish  that  result. 

It  is  so  evident  that  the  frauds  and  irregularities  in  the  second 


August  2.]  CONSTITUTIONAL  CONVENTION.  69 

district  of  Gravesend  are  of  such  a  character  that  they  render  the 
returns  of  the  inspectors  in  this  district  utterly  unworthy  of  cred- 
ence, and  that  under  the  rule  established  in  the  case  of  the  People  v. 
Thacher,  it  must  be  wholly  disregarded,  that  I  do  not  deem  it 
worth  while  to  take  up  the  time  of  the  Convention  by  going  into 
any  examination  of  the  evidence  in  relation  to  these  other  districts. 

It  is  an  ungrateful  duty  that  I  am  called  upon  to  perform  in 
advocating  the  adoption  of  a  report  that  will  unseat  five  members 
of  this  Convention  for  whose  qualifications  and  abilities  I  entertain 
the  greatest  respect.  Yet  the  frauds  at  Gravesend  have  shocked 
the  moral  sense  of  the  entire  country,  and  roused  such  a  storm  of 
indignation  as  has  swept  the  chief  actors  in  the  disgraceful  trans- 
action into  prison,  and  it  was  as  the  result  of  these  frauds  that  the 
certificate  of  election  was  issued  to  these  sitting  members.  There 
can  be  no  doubt  in  the  mind  of  every  honest  man  that  the  con- 
testants received  the  majority  of  the  votes  cast  in  the  Sixth  Sena- 
torial District  and  are  entitled  to  represent  it  in  this  Convention. 
Under  these  circumstances,  and,  much  as  I  may  regret  it,  there 
is  one  and  but  one  course  open  to  me,  and  that  is  to  urge  the 
adoption  of  the  committee's  report,  with  all  its  consequences,  and 
the  award  of  the  seats  in  the  Convention,  too  long  withheld,  to 
those  who  were  honestly  elected  to  them.- 

Mr.  Mullen  —  Speaking  for  the  members  from  the  Sixth  Sena- 
torial District  —  when  I  say  that,  I  mean  the  members  now  sit- 
ting —  I  desire  to  say  for  myself  that  if  there  has  been  one  thing 
that  has  been  the  ambition  of  years,  and  for  which  I  have  persistently 
refused  nomination  to  other  high  and  honorable  office,  it  has  been 
that  when  I  had  reached  the  half-century  of  life  I  might  round  out 
the  period  in  becoming  a  member  of  this  honorable  body.  It  was 
a  dream  with  me  for  years  —  an  ambition  which  I  hoped  to  gratify, 
an  ambition  which  I  thought  honestly  and  conscientiously  would 
be  justified  by  my  past  life,  and  which  I  might  in  the  end  acquire 
and  accomplish. 

It  is  quite  unnecessary  for  me  to  say,  Mr.  President,  that  I  do 
not  know  the  gentleman  whom  the  last  speaker  has  so  frequently 
referred  to.  I  have  never  had  the  pleasure  of  his  acquaintance. 
I  have  never  been  in  contact  with  him,  save  at  the  last  senatorial 
convention.  As  for  any  fraud,  or  participation  in  fraud,  or  knowl- 
edge of  fraud  at  Gravesend,  I  was  as  ignorant  of  that  and  as  inno- 
cent of  that  as  any  gentleman  within  the  sound  of  my  voice  to-night. 
Where  I  reside,  it  is  at  least  ten  or  twelve,  perhaps,  fifteen  miles, 
as  the  crow  flies,  from  Gravesend.  A  vast  expanse  of  water  inter- 
venes. Our  interests  are  not  identical;  our  affiliations  are  not 


70  REVISED  RECORD.  [Thursday, 

identical,  but,  through  the  political  division  of  this  State,  we  were 
made  a  part  and  parcel  of  the  Sixth  Senatorial  District.  In  1892 
we  anticipated  that  a  State  Constitutional  Convention  would  assem- 
ble here  in  this  chamber,  in  the  city  of  Albany,  whose  members 
would  be  elected  from  the  Assembly  districts.  Had  that  been  the 
case,  I  would  have  occupied  my  seat  in  this  Convention  by  an 
honest  and  overwhelming  majority  of  my  neighbors  and  fellow- 
citizens  of  the  county  of  Richmond;  and,  notwithstanding, 
Mr.  President,  this  contest  and  conflict  which  existed  between  two 
wings  of  the  Democratic  party  at  the  last  election,  and,  notwith- 
standing the  fact  that  a  certain  wing  of  the  party  hold  at  least  800 
votes  in  the  county  of  Richmond,  and  ignored  my  name  as  a  Demo- 
cratic candidate  on  the  ticket,  I  carried  my  home  county  by  675 
majority.  When  I  accepted  this  nomination,  with  my  four  col- 
leagues, I  did  it  in  anticipation  of  being  elected,  because  I  had  no 
reason  to  think  to  the  contrary.  Had  the  election  taken  place  in 
the  Sixth  Senatorial  District  in  1892,  an  unquestioned  majority  of 
from  five  to  six  thousand  would  have  been  given  for  the  sitting 
members  that  are  here  to-night.  But,  unfortunately,  in  the 
avalanche  that  overwhelmed  the  State  of  New  York  in  1893  there 
was  such  a  falling  off  that  my  majority  in  the  district  was  but  312. 
Mr.  President  and  gentlemen  of  the  Convention,  when  I  received 
the  announcement  that  I  had  been  elected  a  member  of  this  Con- 
vention, I  deemed  it  my  duty  to  the  State  to  see  that  I  obtained  my 
certificate  of  election.  I  found  that,  by  an  oversight  in  the  Secre- 
tary of  State's  office,  the  votes  cast  in  the  county  of  Richmond  had 
been  entirely  omitted  from  the  canvass  made  by  the  Board  of  State 
Canvassers.  I  at  once  came  to  Albany,  by  request  of  the  Secretary 
of  State,  so  that  the  Board  of  State  Canvassers  might  be  placed 
straight  and  right  in  the  eyes  of  the  people,  so  that  apparent  justice 
might  be  done  to  those  who  seemed  to  have  been  elected  by  the 
returns  filed  in  the  office  of  the  Secretary  of  State.  I  applied  to 
the  General  Term  for  a  mandamus,  compelled  the  Board  of  State 
Canvassers  to  reassemble  and  recanvass  the  vote  in  the  Sixth  Sena- 
torial District.  In  that  application  I  was  opposed  by  the  contest- 
ants. They  knew  the  vote  of  the  county  of  Richmond  had  been 
entirely  overlooked  and  omitted  in  arriving  at  the  result  of  the 
vote  cast  in  the  Sixth  Senatorial  District.  They  appeared  by  coun- 
sel and  opposed  the  application  to  correct  the  error,  which  was 
apparent  on  the  face  of  the  returns ;  but  the  court  at  General  Term 
ordered  the  correction  to  be  made:  and  in  pursuance  of  the  man- 
damus the  correction  was  made  and  the  certificates  were  issued  to 
the  sitting  members  here  to-night.  When  we  received  our  certifi- 


August  2.]  CONSTITUTIONAL  CONVENTION.  71 

cates  we  felt  in  duty  bound  to  come  here,  be  sworn  in  and  participate 
in  the  deliberations  of  this  council;  and,  as  to  the  manner  in  which 
we  have  participated  in  the  duties  appertaining  to  us  in  this  body, 
I  will  leave  it  for  the  consideration  of  the  Convention  to  determine. 

Mr.  President,  it  is  a  source  of  sincere  gratification  to  me  to 
know  that  I  have  met  with  so  many  sincere  friends  in  this  Con- 
vention; to  know  that  my  associates  have  endeared  themselves  to 
many  in  this  Convention.  It  is  gratifying  to  all  of  us;  and,  on 
behalf  of  my  associates  and  myself,  I  desire  here  to-night  to  extend 
our  heartfelt  thanks  for  the  many  marks  of  regard  and  esteem  which 
have  been  shown  toward  us;  and  in  particular,  Mr.  President,  I 
desire  to  acknowledge  most  fervently  the  uniform  kindness  and 
courtesy  which  has  been  extended  to  us  by  the  President  of  this 
Convention  and  by  every  officer  belonging  to  the  same. 

Mr.  President,  I  listened  with  a  great  deal  of  interest  to  the 
remarks  of  the  member  of  the  committee  in  making  his  report 
to-night;  but  I  have  not  arisen  in  my  place  to  argue  this  case  on 
the  merits.  I  am  not  here  to-night  for  the  purpose  of  creating 
factional  feeling;  I  am  not  here  to-night  for  the  purpose  of  injecting 
political  spleen  and  ill-will  into  the  affairs  of  this  body,  which,  I 
believe,  in  the  language  used  by  yourself,  Mr.  President,  in  the 
opening  of  this  body,  "  should  be  above  party  sentiment  and  feeling 
as  a  body,"  and  I  fully  believe  that  it  is.  But,  Mr.  President,  on 
behalf  of  my  associates  and  myself,  1  desire  to  say  —  and  I  say  it 
with  the  utmost  regret  and  the  utmost  respect  —  that  we,  the  sitting 
members  from  the  Sixth  Senatorial  District,  cannot  concur  in  the 
conclusion  arrived  at  by  the  committee  in  this  matter.  We  feel 
that  the  case  is  one  in  which  inferences  have  been  drawn  by  them, 
and  that  from  those  inferences  they  have  arrived  at  conclusions  of 
law  instead  of  arriving  at  the  conclusion  of  law  from  the  facts  of 
the  case.  But,  nevertheless,  Mr.  President,  there  has  been  a  unani- 
mous report  of  this  committee.  I  feel,  and  my  colleagues  feel,  that 
we  are  blameless  in  this  matter;  that,  if  any  wrong  has  been  done, 
we  are  the  victims  of  circumstances  and  not  participators  in  any 
wrong;  and  we  feel,  inasmuch  as  this  committee  speaks  for  the 
whole  body  of  the  House,  that  we  will  bow  to  the  decision  rendered 
by  this  committee. 

Mr.  President,  it  is  quite  unnecessary  for  me  to  dwell  longer 
upon  this  subject,  but,  in  conclusion,  permit  me  to  say  when  we 
leave  you  to-night,  which  we,  undoubtedly,  will,  we  leave  you  with 
the  kindest  feelings,  and  with  the  sincere  hope  that  all  your  efforts 
will  be  successful,  and  that  when  you  end  your  days  here  as  a  Con- 


72  REVISED  RECORD.  [Thursday, 

stitutipnal  Convention,  your  work  will  redound  to  your  own  honor 
and  to  the  glory  of  the  State  of  New  York. 

And,  as  to  my  friends  who  pledged  me  on  this  floor  to  jump  into 
the  arena,  buckle  on  the  armor  and  fight  this  issue  as  to  whether 
we  should  be  unseated  or  not,  I  release  them  from  their  pledge  and 
leave  the  question  to  be  decided  as  in  the  pleasure  of  the  Convention 
may  seem  fitting. 

Mr.  Hirschberg  —  Were  it  not  for  a  single  purpose,  which,  it  has 
occurred  to  me,  might  be  appropriately  subserved,  I  should  not 
occupy  any  part  of  the  attention  of  the  Convention  to-night  in  dis- 
cussing the  disposition  of  this  report;  and  it  has  been  so  fully  dis- 
cussed by  the  chairman  of  the  sub-committee  on  the  facts  in  the 
case,  that  in  what  I  have  to  say  I  will  endeavor  to  be  exceedingly 
brief. 

The  committee,  in  examining  this  case,  have  devoted  to  it  con- 
siderable time;  have  listened  patiently  to  every  argument  that  has 
been  advanced,  and  has  made  this  unanimous  report  under  the 
sense  of  duty  resting  upon  them  in  discharging  the  responsibility 
which  attaches  to  a  decision  that  shall  affect  the  right  of  five  persons 
to  seats  in  this  Convention.  The  general  reasons  which  have  caused 
them  to  make  a  unanimous  report  have  already  been  stated  by  my 
associate  upon  the  committee.  It  is  due  to  the  committee,  due  to 
the  Convention,  due  to  the  gentlemen  who  have  been  adjudged  by 
the  report  not  entitled  to  retain  their  seats  here,  that  it  should  be 
said  that  this  decision  passes  altogether  upon  the  claim  —  and  the 
decision  in  favor  of  that  claim  —  that  the  fraud  complained  of  was 
entirely  that  of  the  officials  in  the  second  election  district  of  Graves- 
end,  and  is  not  at  all  chargeable  to  other  parties.  It  is  the 
inspectors  of  election,  Democratic  and  alleged  Republican  alike,  and 
to  the  local  judiciary  that  the  charge  points,  and  it  is  against  them, 
and  them  only,  that  any  imputation  is  contained  in  the  decision. 

The  town  of  Gravesend  was  divided  into  six  districts  in  the 
spring  of  1890.  The  census  of  the  town  was  taken  in  1892.  That 
the  division  was  correct,  territorially,  that  it  was  correct,  numeri- 
cally, appears  from  the  fact  that  while  the  entire  population  was 
found  by  that  census  to  be  8,418,  the  population  of  the  divisions 
into  districts  was  as  follows:  That  of  the  first  district,  1,120;  the 
second  district,  1,603;  the  third  district,  1,704;  the  fourth  dis- 
trict, 1,501;  the  fifth  district,  1,002,  and  the  sixth  district,  1,488. 
The  Convention  will,  therefore,  see  that  these  districts  had,  as  nearly 
as  could  be,  the  same  number  of  inhabitants,  men,  women  and 
children,  the  second  district,  the  one  in  question,  having  1,603  by 
that  census.  It  has  not  been  seriously  contended  before  the  com- 


August  2.]  CONSTITUTIONAL  CONVENTION.  73 

mittee  that  any  growth  of  the  permanent  population  has  occurred 
since  1892,  and  there  is  abundance  of  evidence  to  show  the  con- 
trary. There  is,  indeed,  some  evidence  in  the  case  that  buildings 
at  Coney  Island,  for  the  purpose  of  entertainment  and  concert  halls 
during  the  summer,  have  increased  during  those  years,  as  they  have 
every  year  in  the  past ;  but  that  the  actual  population  of  the  district, 
of  the  town,  has  increased  beyond  the  normal  has  not  seriously  been 
contended  or  proven  by  anybody  in  the  case.  Now,  the  vote  in 
the  second  district  during  the  fall,  in  1890,  1891,  1892  and  1893, 
was  as  follows:  In  1890,  267,  the  entire  vote  for  all  purposes  in  that 
district  at  the  general  election  in  that  year;  in  1891,  it  was  571;  in 
1892,  it  was  1,094,  and  in  1893,  1,512.  It  has  been  stated  that  the 
large  registry  in  the  second  district,  2,465,  results  from  the  fact 
that  the  old  poll-list  was  copied.  Bear  in  mind,  that  if  the  inspectors 
had  copied  the  old  poll-list  and  put  down  in  1893  the  name  of  every 
man  who  voted  the  year  before,  whether  dead  or  alive,  they  would 
have  put  down  just  1,094  names.  They  added  last  fall  in  that  dis- 
trict alone  1,370  odd  names  of  alleged  new  voters  and  created  a. 
registry  list  which  would  have  been  equivalent  in  the  city  of  New 
York  to  a  registry  of  over  two  million  voters.  In  other  words,  they 
placed  upon  the  list  nearly  900  names  in  excess  of  every  man, 
woman  and  child  in  the  district.  Now.  in  the  adjoining  district, 
the  fifth,  the  vote  which,  in  1890,  was  117,  was  only  227  last  fall. 
In  the  sixth  district  the  vote  was  but  255,  as  against  1,512  in  the 
second;  and  the  difference  in  the  population  between  the  two  dis- 
tricts scarcely  exceeds  100.  Now,  reference  has  been  made  to  the 
election  of  last  spring,  and  it  has  been  proven  before  the  committee, 
by  testimony  not  disputed,  that  that  was  an  election  conducted 
under  circumstances  of  intense  excitement,  and  that  every  vote  was 
got  out  that  could  be.  The  witnesses  united,  those  for  the 
contestants  and  one  for  the  contcstee  who  was  examined,  in  the 
statement  that  every  vote  was  got  out  in  the  second  district  that 
could  be  got  out;  and  that  the  election  in  the  spring  of  1894  was, 
indeed,  hotly  contested,  and  that  the  legitimate  vote  was  got  out  is 
proven  by  the  fact  that  in  the  sixth  district,  where  255  votes  were 
cast  last  fall,  there  were  267  votes  cast  this  spring,  an  increase  of 
twelve.  In  the  fifth  district,  where  227  votes  were  cast  last  fall, 
there  were  212  votes  cast  this  spring;  where  370  votes  were  cast  in 
the  fourth  district  last  fall,  there  were  358  votes  cast  this  spring, 
but  in  the  second  district,  where  1,512  votes  were  alleged  to  have 
been  cast  last  fall,  there  were  but  423  votes  cast  this  spring.  While 
other  districts  had  either  increased  or  at  least  kept  up  to  the  same 
vote  that  was  cast  at  that  time,  this  district  in  question  has  fallen 


74  REVISED  RECORD.  [Thursday, 

off  about  1,100  votes.  Now,  Mr.  President,  I  call  attention  to 
those  few  facts  for  the  purpose  of  showing  the  Convention  that 
even  outside  of  the  registry  list  and  the  poll-list,  which  the  General 
Term  in  the  Second  Department  last  week  said  bore  inherent  and 
internal  evidence  of  fabrication  —  if  there  were  nothing  before  the 
committee,  or  before  the  Convention,  but  the  population  of  the 
district  and  its  vote  during  the  past  four  years,  the  conclusion  would 
be  inevitable  that  the  return  was  a  return  intended  to  falsify  the 
fact,  and  that  the  voters  could  not  have  been  there  to  cast  the  votes 
returned. 

Now,  Mr.  President,  the  conflict  between  those  who  desired  to 
inspect  the  election  methods  in  Gravesend,  and  those  who  have  been 
convicted  of  the  fraud  which  is  charged  here,  is  too  recent  to  require 
that  any  attention  should  be  given  to  it  again.  It  is  a  part  of  the 
political  history  of  the  State.  Every  well-informed  man  is  familiar 
with  its  features.  The  public  press  every  day  devoted  a  large  part 
of  its  columns  to  a  statement  of  attempts  that  were  made  by  scores 
t>f  men  going  to  Gravesend  to  endeavor  to  get  a  sight  of  these 
registry  lists;  that  these  attempts  were  made  day  after  day;  that 
they  were  frustrated  by  the  officials;  that  men  were  hired  to  pretend 
to  copy  the  lists;  that  an  entire  week  went  by,  and  that  when  election 
morn  dawned  all  these  persistent  efforts  had  been  rendered  abor- 
tive—  is  too  well  known  to  require  additional  comment  now;  and 
that  when  resort  was  had  to  the  law,  its  mandate  was  disregarded, 
and  those  who  went  to  Gravesend  under  the  sanction  and  protection 
of  the  process  of  the  court  were  brutally  assaulted  and  thrown  in 
jail.  In  other  words,  fraud  was  assisted  by  violence  and  brutality, 
and  so  it  chanced  that  this  fraud  was  perpetrated,  that  it  was 
enabled  to  be  carried  out,  and  that  these  seats  of  the  five  contest- 
ants in  this  Convention  were  taken  from  them. 

There  is  one  point  that  has  been  made  here  that  I  would  desire 
to  call  attention  to,  and  then  I  am  through  with  any  remarks  upon 
the  merits  of  the  case,  and  that  is  the  point  that  has  been  presented 
on  the  plea  that,  recognizing  the  fact  that  all  the  inspectors  of 
election  have  pleaded  guilty,  recognizing  the  fact  that  Newton  has 
been  convicted,  and  Sutherland  and  McKane,  that  a  conspiracy  may 
have  existed,  that  what  they  plead  guilty  to  having  done  may  have 
been  done,  yet  the  election  itself  may  have  been  honest.  Now, 
there  is  force  in  that  suggestion.  We  can,  perhaps,  imagine  a 
case  where  men,  sworn  officials,  having  a  public  duty  to  per- 
form, may  have  formed  a  conspiracy  to  violate  the  law,  disregard 
their  oaths  and  permit  false  votes  to  be  given  and  a  fraudu- 
lent return  to  be  rendered,  and,  yet,  when  the  time  came,  not 


August  2.]          '  CONSTITUTIONAL  CONVENTION.  75 

have  carried  out  the  object  of  the  conspiracy.  My  answer  to  that 
suggestion  and  to  that  argument  is  this,  that,  if  but  ten  Republican 
votes  existed  in  this  district,  it  would  be  unlikely  that  the  inspectors 
of  election  would  have  formed  a  conspiracy  to  capture  them.  If 
there  were  but  ten  votes  for  the  one  ticket,  as  against  1,502  for  the 
other,  why  should  the  conspiracy  have  been  entered  into?  The 
conclusion  is  irresistible  that  if  there  was  a  conspiracy,  as  is  con- 
ceded, the  return  of  the  votes  shows  that  the  purposes  of  the  con- 
spiracy were  carried  out.  Mr.  President,  there  was  but  one 
conclusion  for  the  committee  to  come  to ;  there  is  but  one  conclusion 
for  the  Convention  to  come  to.  The  courts  have  not  been  mistaken ; 
the  committee  is  not  mistaken;  that  the  conduct  of  the  officials  at 
Gravesend  has  every  indication  of  a  conspiracy  and  a  crime,  is  borne 
out  the  more  clearly  the  more  light  there  is  thrown  upon  the 
transaction. 

Now,  Mr.  President,  one  word  more.  It  is  stated  in  the  report 
that  nothing  in  the  evidence  that  was  taken  before  this  committee 
tends  to  implicate  any  of  the  contestees  in  the  commission  of  any 
of  the  frauds  referred  to  in  the  report.  I  desire  to  emphasize  that 
statement  with  all  the  force  that  can  be  given  to  simple  language. 
No  such  suggestion  was  made,  no  such  evidence  has  been  given, 
none  has  ever  been  heard.  These  gentlemen,  during  the  time  they 
have  been  here,  have  certainly  comported  themselves  with  tact 
and  prudence  and  zeal  in  the  discharge  of  the  duties  of  their  posi- 
tions, and  have  borne  themselves,  under  exceptionally  trying  and 
embarrassing  circumstances,  with  the  utmost  circumspection. 
They  have  not  opposed  to  the  investigations  of  the  committee  an 
unnecessary  obstacle;  they  have  not  been  unduly  captious,  if  at  all; 
they  have  not  made  technical  objections;  they  have  sought  in  every 
way  in  their  power  to  assist  the  committee  in  arriving  at  a  just  con- 
clusion. I  have  no  words  of  bitterness,  of  hostility,  of  humilia- 
tion —  least  of  all,  of  partisan  triumph  —  to  utter  at  this  hour,  but 
only,  with  respect  to  those  gentlemen,  words  of  sympathy,  of 
respect,  of  esteem,  of  regret.  But,  sir,  I  cannot  help  but  feel  that 
the  discharge  of  a  duty  necessitates  that  such  considerations,  such 
personal  considerations,  should  be  disregarded,  and  that  the  action 
to  be  taken  should  be  entirely  limited  and  confined  to  a  decision 
upon  the  single  question  as  to  who  was  or  who  was  not  elected. 
Believing  that  this  report  conveys  the  only  honest  and  honorable 
conclusion  which  could  be  arrived  at,  I,  therefore,  second  the  motion 
which  has  been  made,  that  the  resolutions  adopted  by  the  committee 
be  now  adopted. 


76  REVISED  RECORD.  [Thursday, 

The  President  —  In  conformity  with  the  precedent  set  in  the 
case  of  the  Erie  district,  the  question  will  be  put  separately  upon  the 
first  and  then  upon  the  second  resolution. 

The  President  then  put  the  question  on  the  first  resolution  pre- 
sented by  the  Committee  on  Privileges  and  Elections,  that  Messrs. 
Riggs,  Curran,  Roderick,  Mullen  and  Fitzgerald  are  not  entitled, 
as  delegates  from  the  Sixth  Senatorial  District,  to  the  seats  now 
occupied  by  them  in  the  Convention. 

Mr.  Alvord  —  This  is  the  discharge  of  a  high  and  solemn  duty, 
one  of  the  greatest  prerogatives  belonging  to  this  body.  Under 
the  circumstances  which  surround  it,  I  deem  it  my  duty  to  call  for 
the  yeas  and  nays. 

The  call  for  the  yeas  and  nays  was  sustained. 

The  President  —  In  view  of  calling  for  the  yeas  and  nays,  shall 
the  question  be  put  upon  the  two  resolutions  combined?  The 
Chair  will  read  the  second  resolution. 

"  Resolved,  That  Messrs.  Kinkel,  Pashly,  Deterling,  Nostrand 
and  Kurth  are  duly  elected  delegates  from  the  Sixth  Senatorial 
District,  and  are  entitled  to  the  seats  in  this  Convention  now  occu- 
pied by  the  said  James  W.  Riggs,  Eugene  A.  Curran,  George  W. 
Roderick,  William  M.  Mullen  and  Thomas  W.  Fitzgerald." 

Is  it  the  pleasure  of  the  Convention  that  the  vote  be  taken  upon 
the  two  resolutions  together? 

Mr.  McDonough  —  I  move  that. 

The  President  then  put  the  question  upon  voting  upon  the  two 
resolutions  combined,  and  it  was  determined  in  the  affirmative. 

The  President  then  put  the  question  on  the  adoption  of  the  reso- 
lutions reported  by  the  Committee  on  Privileges  and  Elections,  as 
stated,  and  the  Secretary  proceeded  to  call  the  roll. 

Mr.  Blake  —  I  ask  to  be  excused  from  voting,  and  to  give  my 
reasons  therefor.  After  having  listened,  Mr.  President,  to  the  very 
manly  address  of  the  gentleman  upon  my  right,  and  the  very  touch- 
ing and  sympathetic  and  frank  statement  of  the  chairman  of  the 
Committee  on  Privileges  and  Elections,  I  should  like  to  say  a  word. 
I  think,  sir,  there  is  no  gentleman  in  this  Convention  who  does 
not  regret  the  necessity  that  compelled  this  investigation.  I  think 
there  is  no  gentleman  here  who  does  not  believe  that  the  Committee 
on  Privileges  and  Elections,  with  great  fidelity  and  zeal,  with  much 
of  honest  and  conscientious  endeavor,  sought  to  find  the  very  right 
and  the  truth  of  this  matter,  and  the  result  has  been  read  before  us. 
I  do  not  know  in  whose  mind  there  mav  be  doubt,  but  I  think  we 


August  2.]  CONSTITUTIONAL  CONVENTION.  77 

are  all  convinced  that  each  member  of  the  Committee  on  Privileges 
and  Elections  is  assured,  at  least,  that  no  other  result  could  be 
reached  than  the  conclusion  arrived  at  by  them.  But,  sir,  I  think, 
nevertheless,  that  this  Convention  is  to  be  congratulated,  and,  most 
of  all,  the  gentleman  who  made  so  admirable  and  feeling  an  address, 
and  his  colleagues,  are  to  be  congratulated  at  the  very  happy  solu- 
tion of  this  difficulty.  I  think  all  of  us  feel  deeply  pained  at  the 
parting  at  which  we  have  arrived.  For  three  months  these  gentle- 
ment  have  faithfully  and  zealously  discharged  their  duties,  and  we 
have  mingled  and  associated  with  them,  and  we  have  contracted 
friendships,  which,  I  trust,  will  endure  to  the  last  breath  of  life; 
and  now  they  go  from  our  midst  —  because  I  can  anticipate  the  ver- 
dict —  they  go  from  our  midst,  Mr.  President,  to-night  with  our 
sincerest  regrets  and  our  fondest  adieus  ringing  in  their  ears;  and 
they  will  bear  back  to  their  homes  names  untarnished  and  without 
stain  or  reproach,  according  to  the  report  of  this  committee,  and 
they  will  bear  back,  sir,  what  is  more  precious  and  priceless,  the 
respect  and  the  good-will  and  the  admiration,  and,  I  may  add,  the 
affection  of  every  gentleman  in  this  Convention ;  and,  if  it  be  appro- 
priate in  conclusion,  Mr.  President,  I  am  sure  I  voice  the  sentiments 
of  every  person  here  to-night  in  wishing  for  each  one  of  them  the 
largest  possible  measure  of  success  and  prosperity  in  life;  and, 
with  these  remarks,  sir,  I  withdraw  my  request  to  be  excused  from 
voting,  and  vote  aye.  , 

Mr.  Cochran  —  As  the  reasons  for  which  I  was  excused  from 
voting  on  the  question  in  the  case  of  the  Buffalo  seats  still  exist,  I 
ask  leave  to  be  excused  from  voting  now. 

The  President  —  Mr.  Cochran  asks  to  be  excused  inasmuch  as 
he  holds  a  contested  seat. 

The  President  then  put  the  question  on  the  request  of  Mr.  Cochran 
to  be  excused,  and  he  was  excused. 

Mr.  Cookinham  —  Having,  during  all  the  session  of  this  Con- 
vention, sat  by  the  side  of  two  of  the  gentlemen  whose  seats  must 
be  vacated,  I  regretfully,  in  fulfillment  of  the  high  duty  which  I 
am  compelled  to  fulfil  in  voting  to  unseat  these  gentlemen,  vote  aye. 

Mr.  Towns  —  I  ask  to  be  excused  from  voting. 

The  President  put  the  question  on  excusing  Mr.  Towns  from 
voting,  and  he  was  so  excused. 

Mr.  Van  Denbergh  —  I  ask  to  be  excused  from  voting. 
Mr.  Mullen,  as  a  member  of  the  committee  of  which  I  am  chair- 
man, has,  by  the  display  of  great  legal  ability,  by  his  wide  general 


78  REVISED  RECORD.  [Thursday, 

intelligence,  by  his  urbanity,  by  his  gentlemanly  deportment,  by  his 
manliness  upon  all  occasions,  greatly  endeared  himself  to  that  com- 
mittee, and  we  regretfully  part  with  him,  as  it  seems  we  must. 
In  obedience,  however,  Mr.  President,  to  a  sense  of  duty  imposed 
upon  me  by  law,  I  must  withdraw  my  request  to  be  excused  from 
voting,  and  vote  aye. 

The  President  —  The  President  desires  to  be  excused  from  vot- 
ing, for  the  purpose  of  bearing  his  testimony  to  the  uniform  fidelity 
with  which  the  gentlemen  about  to  be  removed  from  the  Conven- 
tion by  this  vote  have  discharged  the  duties  of  the  office  that  they 
have  held  until  now.  As  Mr.  Mullen  has  well  said,  they  are  the 
innocent  victims  of  the  great  crimes  that  were  committed  at  Graves- 
end.  At  the  same  time  the  evidence  presented  by  the  committee 
is  so  overwhelming  and  complete  that  it  is  impossible  to  disregard 
it.  I,  therefore,  withdraw  my  request  to  be  excused  from  voting, 
and  vote  aye. 

The  report  of  the  committee  was  agreed  to  by  the  following  vote: 
Ayes  —  Messrs.  Abbott,  Acker,  Ackerly,  Allaben,  Alvord,  Arnold, 
Baker,  Banks,  Barhite,  Barnum,  Barrow,  Blake,  Bowers,  Brown, 
E.  A.,  Burr,  Campbell,  Carter,  Cassidy,  Chipp,  Jr.,  Clark,  G.  W., 
Clark,  H.  A.,  Coleman,  Cookinham,  Cornwell,  Crimmins,  Crosby, 
Davenport,  Davies,  Davis,  Deady,  Dean,  Deyo,  Dickey,  Doty, 
Durfee,  Emmet,  Faber,  Fields,  Floyd,  Forbes,  Frank,  Andrew, 
Fraser,  Fuller,  C.  A.,  Fuller,  O.  A.,  Galinger,  Gibney,  Giegerich, 
Gilleran,  Goeller,  Green,  A.  H.,  Hawley,  Hecker,  Hedges,  Herz- 
berg,  Hill,  Hirschberg,  Holls,  Hottenroth,  Jacobs,  Johnson,  I.  Sam, 
Johnson,  J.,  Johnston,  Kellogg,  Lester,  Lewis,  M.  E.,  Lin- 
coln, Lyon,  Mantanye,  McClure,  McCurdy,  McDonough, 
McLaughlin,  C.  B.,  Mereness,  Moore,  O'Brien,  Osborn,  Peck, 
Phipps,  Platzek,  Pool,  Powell,  Pratt,  Putnam,  Redman,  Spring- 
weiler,  Steele,  A.  B.,  Steele,  W.  H.,  Sullivan,  T.  A.,  Sullivan,  W., 
Tekulsky,  Titus,  Tucker,  'Turner,  Vedder,  Veeder,  Vogt,  Welling- 
ton, Whitmyer,  Wiggins,  Woodward,  President  —  101. 

Noes  —  Messrs.  Green,  J.  I.,  McLaughlin,  J.  W.,  Speer  —  3. 

Mr.  Alvord  —  Mr.  President,  I  desire  to  offer  a  somewhat  privi- 
leged resolution,  and,  with  the  consent  of  the  Convention,  I  will 
precede  it  by  a  few  remarks.  I  desire  to  indorse  fully  and  heartily 
the  expressions  which  have  been  given  by  various  speakers  upon 
the  question  of  being  excused  from  voting,  including  the  honorable, 
the  President  of  this  Convention.  I  do,  sir,  regret  that  it  has 
been  necessary  for  this  Convention  at  this  stage  of  its  proceedings, 
after  most  of  us  have  begun  almost  to  love  those  whom  we  are  about 


August  2.]  CONSTITUTIONAL  CONVENTION.  79 

to  part  with,  to  be  compelled  to  do  what  we  have  done  to-night; 
but  it  is  in  the  discharge  of  a  high  prerogative;  it  is  in  the  dis- 
charge of  a  great  duty  which  we  owe  to  those  in  this  State,  and  in 
this  Convention  —  and  I  hope  they  are  all  good  and  true  men  in 
this  Convention  —  who  desire  to  sec  the  ballot-box  kept  now  and 
forever  free  and  inaccessible  to  those  who  desire  to  destroy  its 
influence.  With  these  remarks,  sir,  hastily  given,  I  desire  to  read 
in  my  place  the  resolution  which  I  am  about  to  offer: 

R.  162. — "  Resolved,  That  while  the  evidence  contained  in  the 
unanimous  report  of  the  Committee  on  Privileges  and  Elections  has 
compelled  the  Convention  to  conclude  that  Messrs.  Riggs,  Mullen, 
Curran,  Roderick  and  Fitzgerald  are  not  entitled  to  retain  their 
seats  in  the  Convention,  we  desire  to  put  on  record  our  convictions 
of  the  pure  character  of  those  gentlemen  and  of  their  faithful  con- 
duct as  members  of  this  Convention,  and  our  personal  regret  at 
parting  with  them." 

The  President  put  the  question  on  the  resolution  offered  by 
Mr.  Alvord,  which  was  determined  in  the  affirmative  by  a  unani- 
mous rising  vote. 

Mr.  Hirschberg  —  Mr.  President,  in  accordance  with  the  expres- 
sions of  good  wishes  which  have  been  delivered  by  the  several 
members,  and  in  recognition  of  the  fact  that  the  gentlemen  have 
occupied  seats  in  this  Convention  during  two-thirds  of  its  stated 
time,  I  offer*  the  following: 

R.  163. —  Resolved,  That  the  privileges  of  the  floor  be  extended 
to  the  gentlemen  named  in  the  last  resolution  by  the  Convention 
during  the  remainder  of  the  session. 

The  President  put  the  question  on  the  motion  of  Mr.  Hirschberg, 
which  was  determined  in  the  affirmative. 

The  President  —  Are  any  of  the  gentlemen  who  have  now  been 
declared  entitled  to  seats  in  the  Convention,  Messrs.  Kinkel,  Pashly, 
Deterling,  Xostrand  and  Kurth,  present  with  us?  If  so,  they  will 
come  forward  and  be  sworn. 

Messrs.  Pashly,  Deterling  and  Kurth  then  came  forward  and 
were  duly  sworn. 

The  President  announced  the  appointment  of  Joseph  L.  McEntee 
as  correspondent  for  the  "  United  Press." 

Mr.  H.  A.  Clark  —  I  move  that  the  Convention  do  now  adjourn. 

The  President  —  The  Secretary  has  a  notice  to  announce  before 
the  motion  to  adjourn  is  put. 

The  Secretary  announced  that  the  Committee  on  Civil  Service 


8o  REVISED  RECORD.  [Friday, 

would  meet  in  the  Senate  Chamber  at  9.30  o'clock  to-morrow  (Fri- 
day) morning. 

The  President  then  put  the  question  on  the  motion  to  adjourn, 
which  was  determined  in  the  affirmative. 


Friday  Morning,  August  3,  1894. 

The  Constitutional  Convention  of  the  State  of  New  York  met 
in  the  Assembly  Chamber  at  the  Capitol,  Albany,  N.  Y.,  Friday 
morning,  August  3,  1894. 

President  Choate  called  the  Convention  to  order  at  ten  o'clock. 

The  Rev.  John  Giffen  offered  prayer. 

The  reading  of  the  Journal  of  yesterday  was  dispensed  with. 

The  President  —  Members  who  were  yesterday  declared  entitled 
to  their  seats  are  assigned  to  standing  committees  as  follows: 

Mr.  Deterling,  Charities,  Banking  and  Insurance. 

Mr.  Pashly,  Railroads  and  Contingent  Expenses. 

Mr.  Kinkel,  County,  Town  and  Village  Government  and  the 
Select  Committee  on  Amendments. 

Mr.  Nostrand,  Legislative  Powers  and  Duties  and  Indians. 
.     Mr.  Kurth,  Revision  and  Industrial  Interests. 

Memorials  and  petitions  are  in  order. 

The  Chair  has  received  a  communication  from  citizens  of  Staten 
Island  and  New  York,  in  respect  to  the  protection  of  life,  liberty 
and  the  pursuit  of  happiness. 

Referred  to  the  Committee  on  Preamble. 

Are  the  other  members  whose  right  to  seats  were  declared  last 
night  present  to  take  the  oath  of  office,  or  either  of  them? 

Mr.  Deyo  is  appointed  on  the  Select  Committee  on  Land  Titles, 
in  place  of  Mr.  Riggs. 

Notices,  motions  and  resolutions  are  in  order.  The  Secretary 
will  call  the  districts. 

Mr.  Gibney  —  Mr.  President,  proposed  amendment,  printed 
No.  250,  which  at  present  is  in  the  Committee  on  County,  Town 
and  Village  Government  should  be  referred  to  the  Committee  on 
County,  Town  and  Village  Officers,  as  it  refers  to  the  compensa- 
tion of  those  parties.  This  amendment  is  introduced  by  myself,  and 
I  request  that  it  be  referred  to  the  Committee  on  County,  Town  and 
Village  Officers. 


August  3-J  CONSTITUTIONAL  CONVENTION.  8l 

The  President  —  Proposed  amendment,  printed  No.  250,  is,  at  the 
request  of  the  gentleman  who  introduced  it,  referred  to  the  Com- 
mittee on  County,  Town  and  Village  Officers. 

Mr.  I.  Sam  Johnson  offered  the  following  resolution: 
Resolved,  That  the  Sergeant-at-Arms  be  required  to  place  all 

proposed  amendments  ordered  to  a  third  reading,  when  printed, 

on  the  files  marked  "  Convention  Resolutions." 

Mr.  Johnson  —  Mr.  President,  I  make  this  suggestion  because 
the  files  which  are  marked  "  Convention  Resolutions "  have  not 
been  used,  and,  probably,  will  not  be  used,  and  it  will  be  much  more 
convenient  to  have  these  proposed  amendments,  which  have  been 
ordered  to  a  third  reading,  by  themselves. 

The  President  put  the  question  on  Mr.  Johnson's  resolution,  and 
it  was  determined  in  the  affirmative. 

Mr.  Doty  —  Mr.  President,  I  observe  that  the  proposition  sub- 
mitted by  Mr.  Gibney,  printed  No.  250,  has  just  been  referred 
to  the  Committee  on  County,  Town  and  Village  Officers. 

The  President  —  At  his  request  it  was  so  referred. 

Mr.  Doty  —  That  submission  raises,  perhaps,  a  question  of  pro- 
priety. The  amendment  was  originally  submitted  to  the  Committee 
on  County,  Town  and  Village  Government,  which  had  it  under 
consideration  and  gave  it  very  careful  consideration  and  finally 
determined  to  report  the  proposition  adversely,  if  reported  at  alL 
This  change  of  reference  seems  to  be  an  evasion  of  the  rule  which 
prevails  in  this  Convention.  After  an  amendment  has  been  referred 
to  one  committee  and  considered  by  that  committee,  in  effect,  the 
opposition  of  that  committee  is  sought  to  be  evaded  by  reference  to- 
another  committee.  I  do  not  know  what  suggestions  to  make,  in 
reference  to  this,  but  it  seems  to  me,  Mr.  President,  that  the  effect 
of  it  is  to  impair  the  action  of  the  committees  to  which  the  several 
propositions  are  referred. 

The  President  —  The  question  having  been  raised,  it  will  have 
to  be  decided  by  the  Convention.  Proposed  constitutional  amend- 
ment No.  250  was  referred  originally  to  the  Committee  on  County, 
Town  and  Village  Government.  Mr.  Gibney,  who  introduced  it, 
applied  to  the  Chair  this  morning  to  refer  it  also  to  the  Committee 
on  County,  Town  and  Village  Officers.  It  now  appears,  from  the 
statement  of  the  Committee  on  County,  Town  and  Village  Govern- 
ment that  have  been  considering  it  for  a  considerable  time,  and 
had,  although  not  having  so  voted,  been  on  the  point  of  concluding 
6 


82  REVISED  RECORD.  [Friday, 

to  report  upon  it  adversely,  and  it  has  raised  a  question,  which  the 
Convention  should  decide,  whether,  under  those  circumstances,  it 
could  now  be  referred,  at  the  suggestion  of  the  gentleman  who 
introduced  it,  to  another  committee,  the  Committee  on  County, 
Town  and  Village  Officers.  The  Chair  does  not  feel  that  it  is  the 
right  of  the  President  to  make  a  reference  of  it  under  those  circum- 
stances, without  a  vote  of  the  Convention. 

Mr.  C.  B.  McLaughlin  —  Mr.  President,  do  I  understand  that 
such  a  motion  has  been  made? 

The  President  —  Mr.  Gibney  has  made  such  a  request,  and  the 
Chair,  not  knowing  of  the  difficulty,  supposed  there  would  be  no 
objection  to  its  going  to  the  other  committee. 

Mr.  C.  B.  McLaughlin  —  Mr.  President,  I  sincerely  hope  that 
this  request  will  not  be  granted.  The  proposed  constitutional 
amendment  referred  to  has  been  before  the  Committee  on  County, 
Town  and  Village  Government.  Mr.  Gibney  has  had  an  oppor- 
tunity to  be  fully  heard  upon  that  proposition.  We  have  given  it 
the  most  careful  consideration.  Every  person  who  has  desired  to 
be  heard  upon  it  has  been  afforded  an  opportunity,  and  the  com- 
mittee have  unanimously,  I  think  —  I  am  quite  sure  that  the  vote 
was  unanimous  —  voted  to  reject  it,  and  the  vote  was  taken  that 
if  it  was  reported  at  all,  it  should  be  reported  adversely.  Mr.  Gib- 
ney has  made  no  request  to  that  committee  that  it  should  be 
reported  adversely,  and  to  ask  that  this  proposition  should  be 
referred  to  another  committee  is,  to  put  it  mildly,  treating  the 
committee,  to  which  it  was  originally  referred,  discourteously.  If 
that  is  to  be  the  mode  of  procedure  in  this  Convention,  when  will 
we  ever  succeed  in  reaching  a  conclusion  upon  any  proposition? 
If  he  desires  that  the  proposition  should  be  presented  to  this  body 
and  discussed,  why  not  ask  the  committee  to  report  it  adversely 
and  meet  the  question  squarely,  instead  of  seeking  to  get  it  before 
another  committee,  upon  which  he  knows,  perhaps,  that  there  are 
some  members  who  are  in  favor  of  it.  I  sincerely  hope  that  the 
Convention  will  vote  down  this  motion. 

Mr.  Alvord  —  Mr.  President,  I  desire  to  protest,  and  that  most 
earnestly,  against  any  such  motion.  The  result  inevitably  will  be 
that  the  President  will  be  beset  for  that  purpose.  Each  gentleman, 
who  has  an  adverse  report  to  any  communication  of  his  in  any 
committee,  will  rise  in  his  place  and  move  it  to  another  committee 
until  he  has  run  the  gauntlet  of  the  entire  Convention.  The  duty 
of  the  committee  is  clearly  defined  in  the  rules,  which  require,  upon 
the  request  of  the  party  interested,  that  an  adverse  report  shall 


August  3.]  CONSTITUTIONAL  CONVENTION.  83 

come  before  the  Convention.  All  the  remedy  that  he  seeks  in 
the  premises  can  be  obtained  upon  the  floor  of  the  House.  Under 
all  these  circumstances,  I  do  honestly  move  that  this  motion  lie 
upon  the  table. 

The  President  —  The  Chair  will  hope  that  the  reference  he  made 
a  few  moments  ago  to  another  committee  will  not  stand,  but  that  it 
will  come  before  the  House.  Mr.  Alvord  now  moves  that  the 
motion  to  refer  this  amendment  to  the  Committee  on  County, 
Town  and  Villages  Officers  lie  upon  the  table. 

Mr.  C.  B.  McLaughlm  —  Mr.  President,  I  would  like  to  have 
Mr.  Alvord  withdraw  that  motion. 

The  President  —  Will  Mr.  Alvord  withdraw  the  motion? 

Mr.  Alvord  —  I  will  not. 

The  President  put  the  question  on  the  motion  of  Mr.  Alvord, 
and  it  was  determined  in  the  negative. 

Mr.  Gibney  —  Mr.  President  and  gentlemen  of  the  Convention, 
the  reason  why  I  made  this  request  is  very  brief.  I  will  first  state 
that  if  you  will  look  at  page  26,  in  reference  to  committees  and  their 
duties,  it  says :  "  On  counties,  towns  and  villages,  their  organization, 
government  and  powers  to  consist  of  seventeen  members,"  and 
then  it  follows  on :  "  On  county,  town  and  village  officers,  other 
than  judicial,  their  election  or  appointment,  tenure  of  office,  com- 
pensation, powers  and  duties,  to  consist  of  seventeen  members." 
It  seems  when  this  proposition  was  first  introduced,  the  President 
of  this  Convention  referred  it  to  the  first  committee.  My  proposi- 
tion relates  more  specifically  to  the  compensation  of  county  officers. 
The  matter  of  compensation  is  not  in  the  jurisdiction  at  all  of  the 
committee  to  which  it  was  referred,  and,  as  a  result,  I  was  invited 
to  appear  before  this  second  committee,  and  then  was  informed 
that  it  was  before  the  other  committee,  and  no  later  than  last  week, 
after  appearing  before  this  committee,  as  Mr.  McLaughlin  says  I 
did,  and  was  heard,  I  was  invited  to  appear  before  the  other  com- 
mittee again  on  this  very  same  proposition.  They  said  it  was 
within  their  jurisdiction,  and,  if  gentlemen  will  read  this  proposed 
amendment,  they  will  see  that  it  relates  to  the  powers  of  boards  of 
supervisors,  amending  section  23  of  article  3  of  the  Constitution, 
and  among  their  powers  is  this  power  of  fixing  the  compensation 
of  county,  town  and  village  officers.  You  will  see,  gentlemen, 
then,  that  I  am  right  in  proffering  this  request  that  my  amendment 
should  be  referred  to  this  committee,  so  as  to  enable  me  to  go  before 
that  committee,  which  has  entire  jurisdiction  of  amendments  fixing 
the  compensation  of  county  officers.  The  committee  of  which  Mr. 


84  REVISED  RECORD.  [Friday, 

McLaughlin  is  chairman  has  no  jurisdiction  at  all  when  the  matter 
of  compensation  is  concerned. 

Another  consideration  is  that  several  of  the  gentlemen  of  the 
committee  to  which  I  ask  that  it  be  now  referred  wish  it  to  go  to 
that  committee,  in  order  to  determine  some  part  of  it  which  refers 
to  their  committee,  namely,  the  amending  of  section  23  of  article  3 
of  the  Constitution,  the  section  I  desire  to  amend,  because  I  have 
incorporated  in  my  amendment  the  very  identical  section  of  the 
Constitution  as  it  now  stands,  with  the  additional  provision  that 
they  may  fix  the  compensation  of  town  and  county  officers.  You 
will  see,  Mr.  President,  that  I  have  acted  in  good  faith  in  this  matter. 
I  appeared  before  both  of  the  committees  on  two  different  occasions, 
but  was  only  allowed  to  address  one  of  them.  I  know  nothing 
about  this  adverse  report.  I  have  had  no  notice  of  it.  I  do  not 
know  how  the  committee  stands,  but  I  do  know  that,  looking 
at  the  rules  here,  that  the  proposition  belongs  to  the  committee 
I  wish  to  have  it  referred  to  and  where  there  is  no  question  that  the 
jurisdiction  of  that  committee  includes  this  matter  referred  to  in 
my  amendment.  Several  members  of  that  committee  wish  me  to 
appear  before  it,  as  they  think  it  pertains  to  their  powers  and 
duties. 

Mr.  Mereness  —  Mr.  President,  this  amendment  is  one  that  pro- 
poses to  confer  upon  boards  of  supervisors  of  counties  full  power, 
in  reference  to  fixing  the  salary  of  all  officers  in  the  county. 
Mr.  Gibney  appeared  before  the  Committee  on  County,  Town  and 
Village  Government  and  made  his  argument,  and  it  would  seem  as 
though  that  was  a  waiver  of  any  right,  which  he  thinks  he  now 
has,  to  have  the  matter  considered  by  some  other  committee.  The 
matter  was  thoroughly  discussed  in  the  Committee  on  County, 
Town  and  Village  Government,  and  I  think  the  chairman  will 
remember  that  the  proposition  was  amended  in  committee,  and 
then,  by  a  vote  of  seven  in  favor  and  nine  opposed,  the  committee 
agreed  to  report  the  proposition,  if  at  all,  adversely,  so  that  the 
matter  was  put  in  a  proper  shape  to  be  passed  upon.  I  think 
Mr.  Gibney's  remedy  is  sufficient  to  ask  that  the  adverse  report 
be  presented  to  the  Convention,  and  thus  the  whole  matter  comes 
before  the  Convention  and  may  be  sent  to  the  Committee  of  the 
Whole.  It  seems  to  me  that  it  is  trifling  with  the  business  of 
this  Convention  that  a  matter  can  be  acted  upon  in  one  committee 
in  one  way,  and  then  that  the  mover  can  come  in  and  ask  that  it 
be  sent  around  to  the  various  committees  of  the  body.  For  that 
reason  I  think  the  proposition  to  send  it  to  the  other  committee 
should  be  voted  down.  I  now  move  the  previous  question. 


August  3.]  CONSTITUTIONAL  CONVENTION.  85 

Mr.  C.  B.  McLaughlin  —  Will  the  gentleman  withdraw  his  motion 
just  a  moment? 

Mr.  Mereness  —  I  withdraw  it  for  Mr.  McLaughlin. 

Mr.  C.  B.  McLaughlin  —  Mr.  President,  I  want  to  add  to  what 
I  said  a  moment  ago  that  this  proposition  in  no  view  could  possibly 
go  to  the  Committee  on  County,  Town  and  Village  Officers.  It 
relates  simply  to  the  power  of  the  board  of  supervisors  to  fix  com- 
pensation, not  the  compensation  itself,  but  the  power  of  the  board 
of  supervisors,  and  the  only  proper  place  for  that  amendment  is  in 
the  committee  to  which  it  was  originally  referred,  and  I  sincerely 
hope,  as  I  said  before,  that  the  proposition  to  snake  it  out  of  this 
committee  and  put  it  in  another  committee,  simply  because  the 
committee  has  voted  on  it  in  an  adverse  way,  will  be  voted  down. 
If  Mr.  Gibney  wants  to,  he  can  have  his  amendment  considered 
in  Committee  of  the  Whole. 

Mr.  Gibney  —  Mr.  President,  I  call  the  gentleman  to  order  in 
using  the  word  "  sneak." 

Mr.  C.  B.  McLaughlin  —  I  want  to  correct  the  gentleman.  I  did 
not  use  the  word  "  sneak."  I  said  "  snake." 

Mr.  Gibney  —  Either  one  is  objectionable;  it  doesn't  make  any 
difference. 

Mr.  C.  B.  McLaughlin  —  The  gentleman  can  have  his  choice,  if 
he  wants  to. 

Mr.  Bowers  —  I  would  like  to  inquire  when  the  vote  was  taken 
upon  it  in  the  committee? 

Mr.  C.  B.  McLaughlin  —  Something  like  ten  days  ago.  We 
took  a  vote  upon  that  and  decided,  if  we  reported  it  at  all,  to  report 
it  adversely. 

Mr.  Bowers  —  Was  the  introducer  notified  of  the  fact? 

Mr.  Gibney  —  No,  sir;  I  was  not. 

Mr.  Mereness  —  If  I  may  be  permitted  to  answer  the  question, 
I  would  state  that  I  informed  Mr.  Gibney  a  week  ago  that  the  com- 
mittee had  acted  upon  the  proposition  adversely  and  that  his 
remedy  was  to  bring  it  before  the  Committee  of  the  Whole. 

Mr.  Gibney  —  Mr.  President,  this  matter  is  so  mixed  up  that  I 
thought  it  was  only  right  that  I  should  be  granted  this  request, 
and,  therefore,  I  made  it  as  I  did  this  morning. 

Mr.  Mantanye  —  Mr.  Presid?nt,  in  this  matter,  it  seems  to  me, 
there  is  something  more  to  be  considered  than  its  reference.  There 
should  be  proper  action  by  the  Convention  and  by  the  proper 


86  REVISED  RECORD.  .       [Friday, 

committee.  Now,  I  do  not  see  that  it  is  any  discourtesy  to  the  com- 
mittee to  which  it  has  been  referred  and  which  has  partially  acted 
upon  it,  or  concluded  to  act  upon  it,  to  take  it  from  that  committee 
and  refer  it  also  to  some  other  committee.  There  are  several  of 
these  proposed  amendments,  some  portions  of  which  relate  to 
the  duties  of  one  committee  and  other  portions  to  the  duties  of 
other  committees.  Now,  as  to  this  proposition,  which  I  have  read 
carefully,  it  seems  to  me  that  it  relates  not  only  to  the  compensa- 
tion of  the  county  and  town  officers,  either  elected  or  appointed, 
but  provides  also  that  the  compensation  shall  not  be  increased  or 
diminished.  It  relates  entirely  to  compensation  by  boards  of  super- 
visors. Now,  I  will  say  this:  That  the  Committee  on  County,. 
Town  and  Village  Officers  know  nothing  about  this  particular 
matter,  except  as  they  have  seen  it  on  their  files.  We  have,  how- 
ever, before  us  other  propositions  for  constitutional  amendment 
which  bear  upon  the  same  question  as  provided  in  this  proposed 
constitutional  amendment,  and,  in  order  to  give  us  full  power  over 
these  matters  and  a  fair  consideration  of  all  of  them,  it  seems  to 
me  that  this  proposed  amendment  should  also  be  referred  to  that 
committee.  We  found,  upon  looking  over  the  files,  that  there  were 
two  other  amendments  there  which  had  been  referred  to  the  Com- 
mittee on  County  and  Town  Organization,  and  which  provide  as 
to  who  shall  be  county  officers,  and,  in  some  respects,  provided  for 
their  compensation.  They  came  exactly  in  line  with  other  pro- 
posed amendments  which  had  been  referred  to  the  Committee  on 
County,  Town  and  Village  Officers.  We  have  passed  a  resolu- 
tion —  I  do  not  know  whether  it  has  been  introduced  yet  or  not  — 
asking  that  they  also  be  referred  to  our  Committee  on  County, 
Town  and  Village  Officers,  to  enable  us  to  act  on  them.  Under 
these  rules  the  Committee  on  County,  Town  and  Village  Govern- 
ment should  only  consider  matters  pertaining  to  their  organization 
and  powers,  whereas  the  other  committee,  the  Committee  on 
County,  Town  and  Village  Officers,  is  to  consider  matters  relating 
to  their  election  or  appointment,  tenure  of  office,  compensation, 
powers  and  duties.  The  description  is  somewhat  similar,  but  any 
proposition  that  applies  to  who  shall  be  the  county  or  town  officers, 
or  compensation  of  them,  seems  to  me  to  belong  to  the  Committee 
on  County,  Town  and  Village  Officers;  or,  at  least,  they  have  the 
right  to  consider  them,  even  if  they  were  referred  to  other  com- 
mittees. Now,  we  have  several  propositions  which  we  do  not 
consider  properly  before  us,  and  weTiave  asked  to  have  them  con- 
sidered by  other  committees.  We  did  not  consider  that  we  were 
shirking  our  duty.  We  did  not  consider  that  we  were  insulted  in 


August  3.]  CONSTITUTIONAL  CONVENTION.  87 

any  way.  I  can't  see  any  harm  jn  their  being  referred  to  some  other 
committee,  if  the  gentlemen  who  introduce  them,  or  if  the  com- 
mittees, wish  it. 

Mr.  Dean  —  Mr.  President,  I  think  we  have  had  sufficient 
information  upon  this  question  to  know  how  to  vote  on  it,  and  I, 
therefore,  move  the  previous  question. 

The  President  put  the  question  whether  the  main  question  should 
be  put,  and  it  was  determined  in  the  affirmative. 

The  President  —  This  amendment  was  properly  referred  to  the 
Committee  on  County,  Town  and  Village  Government,  because  it 
provides  only  in  respect  to  the  powers  of  boards  of  supervisors,  and 
contains  a  provision  that  the  Legislature  shall  enact  by  general 
laws,  from  time  to  time,  what  further  powers  of  local  legislation 
and  administration  the  said  boards  of  supervisors  shall  exercise  and 
possess. 

The  President  put  the  .question  on  the  motion  of  Mr.  Gibney,  to 
refer  proposed  amendment  No.  250  to  the  Committee  on  County, 
Town  and  Village  Officers,  and  it  was  determined  in  the  negative. 

The  President  —  The  Convention  will  understand  that  hereafter 
any  application  for  further  reference  of  any  amendment  must  be 
made  on  the  floor,  to  be  acted  upon  by  the  Convention,  either  on 
the  application  of  the  introducer  or  on  the  application  of  some 
committee.  Reports  of  standing  committees  are  in  order.  The 
Secretary  will  call  the  list  of  committees. 

The  Secretary  proceeded  with  the  call  of  committees. 

Mr.  Vedder,  from  the  Committee  on  Legislative  Powers  and 
Duties,  to  which  was  referred  the  amendment  introduced  by 
Mr.  Titus  (introductory  No.  276),  entitled  "  Proposed  constitutional 
amendment,  to  amend  "the  Constitution  by  providing  for  local 
option  in  the  sale  of  spirituous,  malt  or  intoxicating  liquors  or 
beverages,  making  a  new  section,"  reported  adversely  thereo,  which 
report  is  made  to  the  Convention  by  request  of  Mr.  Titus. 

Mr.  Titus  —  Mr.  President,  I  would  ask  the  Secretary  to  read  the 
amendment. 

The  Secretary  read  the  amendment. 

Mr.  Titus  —  Mr.  President,  in  introducing  this  amendment  I  did 
so  at  the  request  of  different  parties  from  all  parts  of  the  State,  not 
alone  of  people  who  are  engaged  in  the  sale  of  liquors,  but  also 
of  temperance  people  throughout  the  State.  They  thought  this 
amendment  would  give  each  and  every  city  and  neighborhood  the 
right  to  judge  for  itself  what  it  wanted,  that  every  year  they 


88  REVISED  RECORD.  [Friday, 

would  not  be  annoyed  by  the  Legislature  passing  different  acts 
and  changing  them  again  the  next  year,  and  have  a  man  in  Buffalo 
regulating  the  palate  of  the  man  in  New  York,  or  a  man  in  New 
York  regulating  the  palate  of  the  man  in  Buffalo.  This  amend- 
ment, I  consider,  is  fully  within  the  principle  of  home  rule  for  cities. 
This  Convention  has  said  so  much  about  and  claimed  to  do  so  much 
for  home  rule  in  cities,  and  I  think  there  is  no  measure  that  affects 
cities  more  than  the  one  that  is  presented  here  to-day.  Mr.  Presi- 
dent, I  will  leave  it  to  the  gentlemen  of  the  Convention  to  pass 
upon  it,  and  I  call  for  the  ayes  and  noes. 

Mr.  Maybee  —  Mr.  President,  in  order  that  the  members  of  the 
Convention  may  understand  the  purport  of  this  proposed  amend- 
ment, I  simply  desire  to  state  that  one  effect  will  be,  in  the  city  of 
New  York,  if  they  desire  there  to  keep  every  saloon  open  all  day 
Sunday  and  during  the  entire  hours  of  the  night,  they  would  have 
the  liberty  under  this  proposed  amendment.  I  am  opposed  to  such 
a  proposition  and  I  hope  the  adverse  report  will  be  agreed  to. 

Mr.  Cassidy  —  Mr.  President,  I  move  the  previous  question. 

The  President  put  the  question  as  to  whether  the  main  question 
shall  now  be  put,  and  it  was  determined  in  the  affirmative. 

Mr.  Titus's  call  for  the  ayes  and  noes  was  supported. 
The  Secretary  proceeded  with  the  roll  call. 

Mr.  Becker  —  Mr.  President,  I  ask  to  be  excused  from  voting, 
and  will  briefly  state  my  reasons.  I  have  always  believed  that  the 
liquor  traffic  was  a  matter  for  local  regulation  and  that  the  portions 
of  the  State  which  pay  taxes  for  the  support  of  local  institutions 
which  are  necessitated,  in  part  at  least  by  that  traffic,  should  have 
sole  voice  in  regulating  the  traffic.  Nearly,  ten  years  ago  I  assisted 
in  preparing  a  resolution  which  contained  this  principle  and  which 
was  brought  before  a  State  convention  of  a  political  party,  and  it 
was  known  as  the  Brodsky  resolution,  to  be  incorporated  in  the 
platform  adopted  at  that  convention.  I  have  never,  from  that  day 
to  this,  failed  to  entertain  the  same  views.  I,  therefore,  wish  to 
withdraw  my  request  to  be  excused,  and  vote  in  the  negative. 

Mr.  Forbes  — Mr.  President,  I  wish  to  ask  what  the  effect  will 
be  of  voting  no;  whether  it  will  send  this  matter  to  the  Committee 
of  the  Whole  or  not? 

The  President  —  If  the  report  of  this  committee,  adverse  to  the 
amendment,  is  disagreed  to,  it  goes  to  the  Committee  of  the  Whole. 

Mr.  Forbes  —  I  vote  no. 


August  3.]  CONSTITUTIONAL  CONVENTION.  89 

Mr.  I.  Sam  Johnson  —  Mr.  President,  I  ask  to  be  excused  from 
voting-,  and  will  briefly  state  my  reasons.  I  am  not  in  favor  of  the 
proposition  as  presented  by  the  mover,  Mr.  Titus,  but  I  am  in 
favor,  and  decidedly  in  favor,  of  local  option  substantially  in  the 
form  which  it  now  exists  in  this  State.  I  believe  that  every  com- 
munity should  have  an  opportunity  of  determining  the  question  in 
some  way,  whether  liquor  should  be  sold  in  a  particular  locality,  and 
it  is  because  I  think  this  matter  may  be  so  changed  in  the  Com- 
mittee of  the  Whole  that  it  will  embody  these  views,  that  I  with- 
draw my  request  to  be  excused  from  voting,  and  vote  no. 

Mr.  Smith  —  Mr.  President,  I  ask  to  be  excused  from  vot- 
ing, and  will  state  my  reasons.  I  believe  the  right  of  self-govern- 
ment to  be  a  natural  right.  (Applause  and  laughter.)  That,  as 
respects  the  individual,  it  means  the  right  to  control  his  own  con- 
duct in  all  things  pertaining  to  himself  and  to  keep  from  trespassing 
upon  the  rights  of  others.  That,  as  respects  the  individual  in  his 
relations  with  the  State,  it  means  the  right  to  unite  with  the  other 
members  of  the  community  in  making  the  rules  or  laws  pertaining 
to  the  affairs  of  the  State.  That,  in  respect  to  localities,  it  means 
the  right  to  unite  with  the  other  members  in  making  the  rules  affect- 
ing the  locality.  It  signifies  the  right  of  home  rule  for  cities  and 
counties.  I  withdraw  my  request  to  be  excused,  and  vote  no. 

Mr.  Tekulsky  —  Mr.  President,  I  desire  to  be  excused  from  vot- 
ing, and  will  briefly  state  my  reasons.  I  intended  to  have  some- 
thing to  say  on  this  matter,  but  Mr.  Cassidy  shut  us  off  a  little 
bit  and  did  not  give  the  members  here  an  opportunity  to  understand 
the  full  meaning  of  this  proposition.  It  has  amused  me  greatly  to 
see  gentlemen  voting  here  to  sustain  the  report  of  the  committee 
without  really  knowing  what  they  are  doing.  I  claim  that  the 
majority  of  the  gentlemen  who  have  voted  aye  on  agreeing  with 
this  report,  are,  year  after  year,  advocating  the  very  thing  that 
this  committee  reports  against,  and  that  it  is  that  there  shall  be 
local  option  and  that  every  locality  shall  be  the  judge  of  its  own 
affairs.  It  is  used  here  in  this  Convention  as  a  home-rule  measure. 
Every  year,  in  the  country  villages  and  towns,  at  every  election, 
they  vote  upon  this  very  proposition;  a  great  many  of  them  carry 
the  districts  in  favor  and  a  great  many  do  not.  Now,  in  this 
amendment,  as  proposed,  every  locality  has  the  right  to  regulate 
the  sale  of  intoxicating  liquors  in  their  own  locality,  and  it  will  do 
this.  It  will  get  rid  of  forty  or  fifty  boards  of  excise  in  counties 
where  there  are  no  cities,  and  that  is  a  blessing  to  those  localities, 
because  in  those  localities,  as  a  rule,  when  the  commissioner  of 
excise  is  up  for  election  they  sacrifice  everything  else  for  that  com- 


90  REVISED  RECORD.  [Friday, 

missioner  of  excise.  I,  therefore,  desire  to  withdraw  my  excuse 
from  voting,  and  vote  no. 

Mr.  Vedder  —  Mr.  President,  I  am  astonished  that  so  intelligent 
a  gentleman  as  Mr.  Tekulsky  should  have  read  this  proposed  amend- 
ment and  not  understood  it  thoroughly.  There  is  not  any  local 
option  in  it  nor  is  there  a  particle  of  home  rule  in  it.  It  does  not 
even  give  to  the  board  of  supervisors,  and  it  does  not  give  to  the 
cities  of  this  State,  any  power  to  say  whether  or  not  any  liquor  shall 
be  sold  in  the  county  or  city.  It  simply  gives  them  the  poor  privi- 
lege of  fixing  the  price  at  which  it  shall  be  sold.  Pass  this  constitu- 
tional provision  and  there  is  no  power  in  the  State  that  can  prevent 
the  sale  of  liquor  in  any  locality.  It  absolutely  destroys  local  option. 
It  absolutely  destroys  this  noble  principle  that  he  speaks  of,  called 
"  home  rule."  All  that  the  people  of  these  localities  can  possibly  do 
is  to  regulate  or  fix  the  price  first,  and,  secondly,  they  may  regulate 
it,  as  between  the  hours  it  can  be  sold,  and  that  is  all.  There  is 
no  power  by  which  liquor  can  be  prevented  from  being  sold  under 
it.  There  is  no  home  rule  about  it  or  local  option  about  it.  It  is 
liquor  forced  upon  us  all  over  the  State,  whether  we  want  it  or 
not,  and  it  is  strange  to  me  that  the  gentlemen  from  the  great 
cities  of  the  State  who  are  clamoring,  day  in  and  day  out,  for  home 
rule  insist  upon  home  rule  for  their  cities  and  deny  home  rule  to 
the  country  places.  I  withdraw  my  request  to  be  excused  from 
voting,  and  vote  aye. 

Mr.  Bigelow  —  Mr.  President,  I  voted  under  an  erroneous 
impression,  and  I  would  like  to  have  my  vote  changed  from  no 
to  aye. 

The  President  —  The  Secretary  will  record  Mr.  Bigelow  in  the 
affirmative. 

The  President  announced  that  the  report  had  been  agreed  to  by 
a  vote  of  86  ayes,  50  noes. 

The  following  is  the  vote  in  detail: 

Ayes  —  Messrs.  Abbott,  Acker,  Ackerly,  Alvord,  Arnold,  Baker, 
Banks,  Barhite,  Barnum,  Barrow,  Bigelow,  Brown,  E.  R.,  Cady, 
Carter,  Cassidy,  Chipp,  Jr.,  Church,  Clark,  G.  W.,  Clark,  H.  A., 
Cookinham,  Countryman,  Crosby,  Davies,  Davis,  Deady,  Dean, 
Deterling,  Dickey,  Doty,  Durfee,  Floyd,  Foote,  Fraser,  Fuller, 
C.  A.,  Fuller,  O.  A.,  Gilbert,  Hamlin,  Hawley,  Hedges,  Hill,  Holls, 
Jacobs,  Kellogg,  Kimmey,  Kurth,  Lester,  Lewis,  C.  H.,  Lincoln, 
Lyon,  Manley,  Mantanye,  Marshall,  Maybee,  McArthur,  McCurdy, 
McDonough,  Mclntyre,  McKinstry,  McLaughlin,  C.  B.,  Mereness, 
Moore,  Morton,  O'Brien,  Osborn,  Parker,  Parkhurst,  Parmenter, 


August  3.]  CONSTITUTIONAL  CONVENTION.  91 

Peck,  Phipps,  Pool,  Pratt,  Putnam,  Rogers,  Root,  Schumaker, 
Spencer,  Steele,  A.  B.,  Steele,  W.  H.,  Storm,  Sullivan,  T.  A.,  Turner,. 
Vedder,  Wellington,  Whitmyer,  Wiggins,  Woodward,  Presi- 
dent —  87. 

Noes  —  Messrs.  Becker,  Blake,  Bowers,  Burr,  Bush,  Campbell, 
Cochran,  Coleman,  Danforth,  Davenport,  Emmet,  Forbes,  Frank, 
Andrew,  Galinger,  Gibney,  Giegerich,  Gilleran,  Goeller,  Green, 
A.  H.,  Green,  J.  L,  Griswold,  Hecker,  Herzberg,  Hottenroth,  John- 
son, I.  Sam,  Johnston,  Kerwin,  Lewis,  M.  E.,  Marks,  McLaughlin, 
J.  W.,  Meyenborg,  Nicoll,  Ohmeis,  Peabody,  Platzek,  Redmond,. 
Sandford,  Smith,  Speer,  Springweiler,  Sullivan,  W.,  Tekulsky,  Titus, 
Towns,  Truax,  C.  H.,  Truax,  C.  S.,  Tucker,  Veeder,  Vogt, 
Williams  —  50. 

Mr.  Griswold  —  Mr.  President,  I  wish  to  change  my  vote  from 
no  to  aye.  I  voted  under  a  wrong  impression. 

Mr.  A.  H.  Green  —  Mr.  President,  I  wish  also  to  change  my 
vote  from  the  negative  to  the  affirmative. 

The  President  —  The  Chair  is  of  the  opinion  that  after  the  vote 
has  been  announced  it  is  too  late,  although  the  gentlemen's  request 
may  be  noted  upon  the  Record. 

Mr.  Vedder,  from  the  Committee  on  Legislative  Powers  and 
Duties,  to  which  was  referred  the  proposed  constitutional  amend- 
ment introduced  by  Mr.  McKinstry  (introductory  No.  90),  entitled 
"  Proposed  constitutional  amendment  to  amend  article  3  of  the 
Constitution,  in  regard  to  taking  saloons  out  of  politics,"  reports  in 
favor  of  the  passage  of  the  same,  with  some  amendments. 

The  Secretary  read  the  amendments. 

The  President  —  Referred  to  the  Committee  of  the  Whole. 

Mr.  Vedder,  from  the  same  committee,  to  which  was  referred  the 
proposed  constitutional  amendment  introduced  by  Mr.  McMillan 
(introductory  No.  2),  entitled  *'  Proposed  constitutional  amendment 
to  amend  section  16  of  article  3  of  the  Constitution  of  the  State  of 
New  York,  relative  to  legislation,"  reports  in  favor  of  the  passage 
of  the  same,  with  some  amendments. 

The  Secretary  read  the  amendments. 

Mr.  Vedder  —  Mr.  President,  as  read  by  the  Secretary,  that  is 
not  the  bill  that  we  agreed  to  report.  I  ask  that  it  be  returned  to 
the  committee  to  correct  the  phraseology. 

The  President  —  At  the  request  of  the  chairman  of  the  committee, 
this  amendment  is  referred  back  to  the  committee  for  correction. 


92  REVISED  RECORD.  [Friday, 

Mr.  Vedder,  from  the  same  committee,  to  which  was  referred  the 
proposed  constitutional  amendment  introduced  by  Mr.  J.  Johnson 
(introductory  No.  212),  entitled  "  Proposed  constitutional  amend- 
ment to  amend  the  Constitution  in  relation  to  the  title  of  bills," 
reports  in  favor  of  the  passage  of  the  same,  with  some  amendments. 

The  Secretary  read  the  amendments. 

The  President  —  Referred  to  the  Committee  of  the  Whole. 

Mr.  Vedder,  from  the  same  committee,  to  which  was  referred  the 
amendment  introduced  by  Mr.  Barhite  (introductory  No.  120), 
entitled  "  Proposed  constitutional  amendment  to  amend  section  6 
of  article  I  of  the  Constitution,  giving  the  Legislature  power  to  pass 
certain  laws,"  reports  in  favor  of  the  passage  of  the  same,  with  some 
amendments. 

The  Secretary  read  the  amendments. 

The  President  —  Referred  to  the  Committee  of  the  Whole. 

Mr.  Vedder,  from  the  same  committee,  to  which  was  referred  the 
proposed  constitutional  amendment  introduced  by  Mr.  Roche 
(introductory  No.  146),  entitled  "  Proposed  constitutional  amend- 
ment to  amend  section  13  of  article  3  of  the  Constitution,  as  to  the 
passage  of  bills  by  the  Legislature,"  reports  in  favor  of  the  passage 
of  the  same,  with  some  amendments. 

The  Secretary  read  the  amendments. 

Mr.  Vedder  —  I  respectfully  dissent  from  the  report  of  the  com- 
mittee upon  the  last  proposed  amendment,  and  desire  that  my  dis- 
sent shall  be  entered  upon  the  Journal. 

The  President  —  Referred  to  the  Committee  of  the  Whole. 

Mr.  Vedder,  from  the  same  committee,  to  which  was  referred  the 
proposed  constitutional  amendment  introduced  by  Mr.  Becker 
(introductory  No.  215),  entitled  "Proposed  constitutional  amend- 
ment to  amend  the  Constitution  in  relation  to  grants,"  reports  in 
favor  of  the  passage  of  the  same,  with  some  amendments. 

The  Secretary  read  the  amendments. 

The  President  —  Referred  to  the  Committee  of  the  Whole. 

Mr.  Acker,  from  the  Committee  on  Finance  and  Taxation,  to 
which  was  referred  the  resolution,  No.  161,  introduced  by  Mr.  I.  S. 
Johnson,  entitled  "  a  resolution  requesting  the  commissioner  of 
taxes  and  assessments  of  the  city  .of  New  York  to  furnish  a  state- 
ment of  the  condition  of  the  several  trust  companies  of  that  city, 
showing  the  gross  assets,"  etc.,  reports  in  favor  of  the  passage  of 
the  same,  with  some  amendments. 


August  3.]  CONSTITUTIONAL  CONVENTION.  93 

The  Secretary  read  the  amendments. 

Mr.  Acker  —  I  move  the  adoption  of  the  report. 

The  President  put  the  question  on  the  motion  to  adopt  the  report, 
and  it  was  adopted. 

Mr.  Acker,  from  the  same  committee,  to  which  was  referred  the 
resolution  (No.  158)  introduced  by  Mr.  I.  S.  Johnson,  entitled  "a 
resolution  requiring  the  Superintendent  of  Banks  to  furnish  infor- 
mation concerning  the  condition  of  trust  companies,  their  capital, 
surplus,  resources,  amount  of  profit  and  dividends,"  reports  in  favor 
of  the  passage  of  the  same,  with  some  amendments,  and  moves 
its  adoption. 

The  Secretary  read  the  amendments. 

The  President  put  the  motion  to  adopt  the  report,  and  it  was 
adopted. 

Mr.  Hawley,  from  the  Committee  on  Corporations,  reported  as 
follows : 

To  the  Convention: 

Your  Committee  on  Corporations,  having  had  under  considera- 
tion proposed  constitutional  amendment  No.  322  (introductory  No. 
314),  introduced  by  Mr.  Tucker,  entitled  "Proposed  constitutional 
amendment  to  amend  section  2  of  article  8  of  the  Constitution, 
to  require  payment  of  wages  weekly  to  employes  of  corpora- 
tions, and  better  to  secure  the  same,"  and  having  reached  a  deter- 
mination adverse  thereto;  and,  your  committee  having  thereafter 
been  requested,  in  writing,  by  Mr.  Tucker,  to  report  its  adverse 
determination,  does,  in  obedience  to  such  request,  now  report 
adversely  thereto. 

CHARLES  A.  HAWLEY, 
Chairman  Committee  on  Corporations. 

Dated  August  2,  1894. 

The  Secretary  read  the  amendment. 

Mr.  Cochran  —  I  see  that  Mr.  Tucker  is  absent  from  his  seat,  and 
I,  therefore,  move  that  that  report  lie  upon  the  table  until  he  has 
an  opportunity  to  be  heard. 

The  President  put  the  motion  and  it  was  carried. 

Mr.  Hawley,  from  the  Committee  on  Corporations,  to  which  was 
referred  the  proposed  constitutional  amendment  introduced  by 
Mr.  Tucker  (introductory  No.  360),  reports  adversely  thereto.  The 
report  is  accompanied  by  a  report  from  Mr.  E.  R.  Brown,  from  the 
Select  Committee  on  Further  Amendments,  to  which  was  referred 


94  REVISED  RECORD.  [Friday, 

the  proposed  constitutional  amendment  by  Mr.  Ticker  (introductory 
No.  360),  entitled  "  Proposed  amendment  to  provide  for  the  con- 
struction, etc.,  by  the  State  of  public  works,"  hereby  transmits  the 
same,  in  accordance  with  rule  73,  to  the  Committee  on  Railroads, 
for  its  information,  the  said  amendments  having  been  found  to 
relate  to  subjects  already  under  consideration  by  the  Committee 
on  Railroads,  and  it  was  referred  also  to  the  Committee  on 
Corporations. 

Mr.  Hawley  —  I  do  not  think  Mr.  Tucker  desires  to  be  heard 
upon  this  — 

The  President — Mr.  Tucker  has  just  come  in.  Mr.  Tucker, 
have  you  anything  to  say  on  this  subject? 

Mr.  Tucker  —  No,  sir. 

The  President  put  the  question  on  the  adoption  of  this  report  of 
the  Committee  on  Corporations,  and  it  was  adopted. 

The  President  —  As  Mr.  Tucker  is  now  present,  may  we  not 
have  the  other  report,  which  was  laid  on  the  table,  taken  up? 

Mr.  Tucker  —  I  move  to  take  from  the  table  the  report,  intro- 
ductory No.  314. 

The  Presirent  put  the  motion,  and  the  report  referred  to  was 
taken  from  the  table. 

The  President  —  The  question  is  now  upon  agreeing  to  the 
adverse  report  of  the  committee  on  that  amendment. 

The  President  put  the  question,  and  the  report  of  the  committee 
Avas  adopted. 

Mr.  McDonough,  from  the  Committee  on  State  Prisons,  etc.,  to 
which  was  referred  the  proposed  constitutional  amendment  intro- 
duced by  Mr.  McDonough  (introductory  No.  117),  entitled  "Pro- 
posed constitutional  amendment  to  amend  article  3  of  the 
Constitution,  by  adding  a  section  to  provide  for  the  occupation  and 
employment  of  prisoners  in  State  prisons,"  etc.,  reports  in  favor  of 
the  passage  of  the  same,  with  some  amendments. 

The  Secretary  read  the  amendments. 

The  President  —  Referred  to  the  Committee  of  the  Whole. 

Mr.  McDonough,  from  the  same  committee,  to  which  was  referred 
the  proposed  constitutional  amendment  introduced  by  Mr.  Blake 
(introductory  No.  201),  entitled  "  Proposed  constitutional  amend- 
ment to  amend  section  5  of  article  i  of  the  Constitution,  providing 
for  the  abolition  of  the  death  penalty,"  reports  adversely  thereto. 

Mr.  Blake  —  Mr.  President,  I  move  that  the  Convention  disagree 


August  3.]  CONSTITUTIONAL  CONVENTION.  95 

with  the  report  of  the  committee,  and  I  respectfully  request  that  the 
hearing  on  the  same  be  postponed  until  next  Wednesday  morning. 

The  President  put  the  question  on  this  motion,  and  it  was  carried. 

Mr.  McDonough,  from  the  same  committee,  to  which  was  referred 
the  proposed  constitutional  amendment  introduced  by  Mr.  Tucker, 
(introductory  No.  264),  entitled  "  Proposed  constitutional  amend- 
ment to  amend  the  Constitution  by  adding  to  the  first  article  thereof 
a  new  section  relating  to  the  punishment  of  inmates  of  prisons,"  etc., 
reports  adversely  thereto. 

The  President  put  the  question  on  the  adverse  report  of  the  com- 
mittee, and  it  was  adopted. 

Mr.  Dean  —  I  move  to  reconsider  the  vote,  Mr.  President,  by 
which  the  adverse  report  of  the  Committee  on  Suffrage,  on  propo- 
sition No.  21,  was  agreed  to.  My  object  in  doing  this  is  simply 
that  there  are  some  matters  contained  in  that  proposition  which  I 
may  desire  at  a  future  time  to  call  up,  and  this  will  leave  it  within 
the  control  of  the  Convention,  and  I,  therefore,  move  to  lay  this 
motion  on  the  table. 

Mr.  Cookinham  —  Mr.  President,  I  hope  that  motion  will  not 
prevail. 

Mr.  Dean  —  Mr.  President,  my  motion  is  not  debatable. 

The  President  —  The  motion  to  lay  on  the  table  is  not  debatable. 
We  may  as  well  dispose  of  that  now. 

The  President  put  the  question  on  the  motion  to  lay  on  the  table, 
and  it  was  lost. 

The  President  —  The  question  is  now  upon  the  motion  to 
reconsider. 

Mr.  Cookinham  —  As  was  stated  by  the  chairman  of  this  com- 
mittee, by  an  agreement,  certain  of  these  proposed  amendments 
were  to  be  presented  to  the  Convention.  They  were  presented, 
according  to  that  agreement.  An  arrangement  was  made  that  the 
argument  should  take  place  upon  certain  other  amendments. 
Speaking  now  for  the  committee,  I  say  that  no  arrangement  would 
have  been  made  with  the  other  side,  if  it  had  not  been  supposed 
that  when  they  came  into  the  Convention  the  agreement  would  be 
kept  in  good  faith  and  the  discussion  should  be  entirely  upon  the 
two  propositions  which  now  are  before  the  Convention  for  the 
purpose  of  discussion. 

And  this  is  the  reason.  This  committee  has  heard  from  forty  to 
sixty  speeches  upon  this  subject.  I  think  the  committee  is  well 
prepared  to  say  that  if  each  one  of  these  amendments  is  to  be 


96  REVISED  RECORD.  [Friday, 

presented  to  this  Convention,  and  a  discussion  shall  be  had  upon 
each  one  of  them,  we  shall  be  here  until  snow  flies  before  this  sub- 
ject is  disposed  of.  I  have  been  requested  to  vote  to  reconsider 
other  amendments  that  arc  in  the  same  condition  as  Mr.  Dean's,  and 
should  this  motion  prevail,  immediately,  in  my  judgment,  some 
other  delegate,  who  desires  to  have  his  amendment  discussed  in 
Committee  of  the  Whole,  will  also  rise  and  make  a  similar  motion. 
I,  therefore,  hope  the  motion  of  the  gentleman  will  not  prevail. 

Mr.  Dean  —  Mr.  President,  there  'is  no  effort  at  anything  like 
discrediting  this  committee  in  this  matter.  There  is  no  agreement, 
so  far  as  I  know,  between  the  committee  and  anybody  who  pre- 
tends to  represent  "the  other  side,"  as  he  terms  people;  but  the 
question  is  simply  to  save  out  some  proposed  amendments  in  addi- 
tion to  the  question  of  women's  suffrage. 

Mr.  Alvord  —  Mr.  President,  I  desire  to  say  to  the  gentleman 
who  has  made  this  motion  that  there  is  no  difficulty  in  getting  at 
the  matter  which  he  desires  by  way  of  amendment  to  the  propo- 
sitions which  are  ordered  to  the  Committee  of  the  Whole.  There  is 
no  need  of  making  it  a  separate  and  distinct  matter,  and  I,  therefore, 
hope  his  motion  to  reconsider  will  not  prevail. 

Mr.  Lincoln  —  Mr.  President,  as  I  understand  the  situation  there 
is  nothing  sent  to  the  Committee  of  the  Whole.  The  committee's 
adverse  report  upon  Mr.  Tucker's  amendment  is  a  special  order  for 
Wednesday  evening.  Now,  I  suppose  that  in  the  discussion  of  the 
question,  on  agreeing  or  disagreeing  to  that  report,  no  amendment 
can  be  suggested. 

The  President  —  Nothing  has  been  sent  to  the  Committee  of  the 
Whole.  The  subject  has  simply  been  made  a  special  order  for  next 
Wednesday  evening. 

Mr.  Lincoln  —  I  labored  under  a  misapprehension  yesterday 
when  I  permitted  some  amendments  of  mine  to  be  buried,  by  agree- 
ing to  the  adverse  report  of  the  committee.  They  are  amendments 
upon  which  I  have  not  been  invited  to  be  heard  before  the  Com- 
mittee on  Suffrage.  I  should  like  to  present  my  views  to  this  Con- 
vention, not  having  had  the  opportunity  to  present  them  to  the 
committee,  upon  No.  108  and  No.  no.  If  I  had  not  supposed  that 
this  whole  matter  was  coming  up  in  such  a  shape  that  the  whole 
subject  would  be  presented  together,  I  should  have  raised  that 
question  when  these  matters  were  up  before.  It,  therefore,  seems 
to  me  that  under  the  circumstances  this  motion  of  Mr.  Dean's  ought 
to  prevail. 

The    President  —  The    gentleman    must    have    heard    the    very 


August  3.]  CONSTITUTIONAL  CONVENTION.  97 

explicit  statement  of  the  chairman  of  the  Committee  on  Suffrage  as 
to  the  agreement  that  was  made  in  regard  to  those  reports. 

Mr.  Lincoln  —  I  did  not  hear  all  he  said. 

Mr.  Platzek  —  Mr.  President,  I  am  very  glad  to  have  the  oppor- 
tunity to  extend  the  same  courtesy,  with  which  he  has  favored  us  so 
often,  to  Mr.  Dean,  and  I,  therefore,  move  the  previous  question. 

Mr.  Cookinham  —  The  object,  Mr.  President,  is  not  to  stifle 
debate  in  the  slightest  degree.  It  is  not  to  shut  out  any  amendment. 
It  is  not  to  prevent  Mr.  Dean  or  Mr.  Lincoln  or  any  other  gentle- 
man from  talking  all  they  choose,  because  the  Committee  on 
Suffrage  will  report  an  amendment  to  the  Constitution  covering 
the  subject  of  suffrage  entirely,  and  at  that  time  that  report  will  be 
sent  to  the  Committee  of  the  Whole,  and  in  the  Committee  of  the 
Whole  Mr.  Dean  and  Mr.  Lincoln  may  offer  their  amendments  as 
amendments  to  our  reported  amendment,  and  they  may  have  their 
entire  discussion  then.  Now,  should  this  motion  prevail,  we  will 
have  a  discussion  first  upon  Mr.  Dean's  amendment.  Then  he  will 
offer  it  again  in  Committee  of  the  Whole,  and  we  will  have  a  second 
discussion  upon  it. 

Mr.  Dean  —  May  I  ask  the  gentleman  a  question? 

Mr.  Cookinham  —  Certainly,  sir. 

Mr.  Dean  —  I  simply  desire  to  know  whether  this  proposed 
suffrage  article  is  to  be  reported  within  a  reasonable  time? 

Mr.  Cookinham  —  I  answer  the  gentleman  that,  in  my  judgment, 
it  will  be  reported  within  two  days. 

Mr.  Dean  —  Then  I  withdraw  my  motion. 

The  President  —  Very  well. 

Mr.  E.  R.  Brown,  from  the  Select  Committee  on  Further  Amend- 
ments, to  which  was  referred  the  proposed  constitutional  amend- 
ment, introduced  by  Mr.  Roche  (introductory  No.  370),  entitled 
"  Proposed  amendment  to  the  Constitution  for  the  abolition  of  tolls 
and  making  public  roads  free,"  reports  that,  in  his  opinion,  the 
same  ought  to  be  printed  and  referred  under  rule  32. 

The  President  put  the  question,  and  the  report  was  agreed  to. 

Mr.  E.  R.  Brown,  from  the  same  committee,  to  which  was 
referred  the  proposed  constitutional  amendment,  introduced  by 
Mr.  Hedges  (introductory  No.  371),  entitled  "Proposed  constitu- 
tional amendment  to  amend  article  2  of  the  Constitution,  relating 
to  the  method  of  electing  public  officers,"  reports  that  the  same  has 
been  found  to  relate  to  a  subject  already  under  consideration  by  the 
7 


98  REVISED  RECORD.  [Friday. 

Committee  on  Suffrage,  and  it  has,  therefore  been  transmitted, 
without  printing,  directly  to  said  committee  for  its  information, 
under  rule  73. 

The  President  —  I  do  not  think  this  report  requires  any  action 
by  the  Convention. 

Mr.  E.  R.  Brown,  from  the  same  committee,  to  which  was  referred 
the  proposed  constitutional  amendment,  introduced  by  Mr.  Forbes, 
(introductory  No.  373),  entitled  "  Proposed  constitutional  amend- 
ment to  amend  article  3  by  adding  a  new  section,"  reports  that  the 
same  has  been  found  to  relate  to  subjects  under  consideration  by 
the  Committee  on  Charities,  and  it  has  gone  to  that  committee  under 
.the  operation  of  rule  73. 

The  President  —  Will  the  chairman  of  the  Select  Committee  aid 
the  Chair  in  deciding  how  this  report  on  the  proposed  amendment 
for  the  abolition  of  tolls  and  making  public  roads  free,  shall  be 
.referred? 

Mr.  E.  R.  Brown  —  As  that  was  not  a  matter  for  the  considera- 
tion of  our  committee,  and  inasmuch  as  we  directed  it  to  be  printed, 
we  left  it  to  the  discretion  of  the  Chair. 

The  President  —  It  is  referred  to  the  Committee  on  Legislative 
Powers  and  Duties. 

Mr.  E.  R.  Brown,  from  the  same  committee,  to  which  was 
referred  the  proposed  constitutional  amendment  introduced  by  Mr. 
A.  H.  Green  (introductory  No.  372),  to  provide  a  State  insurance 
fund  for  the  aged,  reports  that  that  relates  to  a  subject  under  con- 
sideration by  the  Committee  on  Banking  and  Insurance,  and  that 
it  has  been  transmitted  to  that  committee  under  the  operation  of 
rule  73. 

The  President  —  That  requires  no  action  on  the  part  of  the 
Convention. 

Mr.  Gilbert,  from  the  Select  Committee  on  Civil  Service,  to  which 
was  referred  the  proposed  constitutional  amendment,  introduced  by 
Mr.  H.  A.  Clark  (introductory  No.  206),  entitled  "  Proposed  amend- 
ment to  amend  the  Constitution,  relative  to  the  civil  service,  State 
and  city,"  reports  in  favor  of  the  passage  of  the  same,  with  some 
amendments. 

The  Secretary  read  the  amendments. 

The  President  —  Referred  to  the  Committee  of  the  Whole. 

Mr.  Platzek  —  Mr.  President,  I  ask  unanimous  consent,  on  behalf 
of  Mr.  Deyo,  that  he  be  excused  from  attendance  to-day  on  account 
of  a  necessary  engagement. 


August  3.]  CONSTITUTIONAL  CONVENTION.  99 

The  President  put  the  question,  and  the  request  was  granted. 

Leave  of  absence  was  also  asked  for  the  day  on  behalf  of  Mr. 
Lauterbach,  and  it  was  granted. 

Mr.  C.  H.  Truax  asked  and  obtained  leave  of  absence  for  next 
week. 

Mr.  Herzberg  asked  and  was  granted  leave  of  absence  for  Tues- 
day and  Wednesday  of  next  week. 

Mr.  Danforth  asked  and  was  granted  leave  of  absence  for  Tuesday 
and  Wednesday  of  next  week. 

Mr.  Deady  asked  and  was  granted  leave  of  absence  for  Tuesday 
and  Wednesday  of  next  week. 

Mr.  Hamlin  asked  and  was  granted  leave  of  absence  for  Tuesday 
and  Wednesday  of  next  week. 

Mr.  Cady  —  Mr.  President,  I  move  that  the  Convention  do  now 
adjourn. 

The  President  put  the  question,  and  the  motion  was  carried. 

The  Convention  thereupon  adjourned  to  Tuesday,  August  7, 
1894,  at  10  A.  M. 

Tuesday,  August  7,  1894. 

The  Constitutional  Convention  of  the  State  of  New  York  met  in 
the  Assembly  Chamber  in  the  Capitol  at  Albany,  N.  Y.,  August  7, 
1894,  at  10  o'clock  in  the  morning. 

President  Choate  called  the  Convention  to  order. 
The  Rev.  Lyman  Edwin  Davis  offered  prayer. 

Messrs.  Kinkle  and  Nostrand,  delegates  from  the  second  district, 
took  the  oath  of  office. 

Mr.  O'Brien  moved  that  the  reading  of  the  Journal  of  Friday, 
August  3,  1894,  be  dispensed  with. 

The  President  put  the  question  on  the  motion  of  Mr.  O'Brien, 
and  it  was  determined  in  the  affirmative. 

Mr.  A.  B.  Steele  —  Mr.  President,  it  is  my  painful  duty  to 
announce  that,  since  the  last  session  of  this  Convention,  one  of  my 
colleagues  from  the  Twentieth  Senatorial  District,  the  Hon.  Walter 
L.  Van  Denbergh,  has  died.  I,  therefore,  now  move  that  a  com- 
mittee of  three  be  appointed  by  the  Chair,  to  draft  suitable  resolu- 
tions for  presentment  to  this  Convention  at  the  present  session. 

The  President  put  the  question  on  the  motion  of  Mr.  Steele,  and  it 
was  determined  in  the  affirmative. 


100  REVISED  RECORD.  [Tuesday, 

The  President  appointed  as  such  committee,  Mr.  A.  B.  Steele,  Mr. 
Francis  and  Mr.  Hawley. 

Mr.  Holls  —  Mr.  President,  I  have  just  received  a  telegram  from 
Mr.  Towns,  stating  that  he  is  detained  on  imperative  business,  and 
asking  to  be  excused  from  attendance  on  the  Convention  to-day. 
I  move  that  he  be  so  excused. 

The  President  put  the  question  on  the  request  of  Mr.  Towns  to  be 
excused  from  attendance,  and  he  was  so  excused. 

Mr.  C.  B.  McLaughlin  —  Mr.  President,  I  have  received  a  tele- 
gram from  Mr.  McArthur,  saying  that  sickness  in  his  family  will 
prevent  his  being  here  to-day  and  to-morrow,  and  asking  to  be 

excused  for  that  time. 

• 

The  President  put  the  question  on  the  request  of  Mr.  McArthur 
to  be  excused  from  attendance,  and  he  was  so  excused. 

The  President  stated  that  a  dispatch  had  been  received  from  Mr. 
Holcomb,  of  New  York,  asking  to  be  excused  from  attendance 
to-day  in  order  to  attend  the  funeral  of  a  near  friend. 

The  President  put  the  question  on  the  request  of  Mr.  Holcomb 
to  be  excused  from  attendance,  and  he  was  so  excused. 

The  President  stated  that  a  letter  had  been  received  from  Mr. 
A.  H.  Green,  of  New  York,  expressing  doubt  whether  he  would  be 
able  to  attend  the  Convention  to-day  by  reason  of  the  state  of  his 
health,  and  asking  to  be  excused. 

The  President  put  the  question  on  the  request  of  Mr.  Green 
to  be  excused  from  attendance,  and  he  was  so  excused. 

Mr.  Goeller  —  Mr.  President,  I  beg  to  be  excused  from  attend- 
ance to-morrow  and  Thursday,  owing  to  an  urgent  engagement. 

The  President  put  the  question  on  the  request  of  Mr.  Goeller 
to  be  excused  from  attendance,  and  he  was  so  excused. 

Mr.  Mclntyre  —  Mr.  President,  I  ask  that  Mr.  Whitmyer  be 
excused  from  attendance  to-day. 

The  President  put  the  question  on  the  request  of  Mr.  Whitmyer 
to  be  excused  from  attendance,  and  he  was  so  excused. 

Mr.  Arnold  —  Mr.  President,  I  ask  to  be  excused  from  the  even- 
ing session  to-day. 

The  President  put  the  question  on  the  request  of  Mr.  Arnold 
to  be  excused  from  attendance,  and  he  was  so  excused. 

Mr.  Storm  —  Mr.  President,  with  a  great  deal  of  regret  on  my 
part,  I  must  ask  to  be  excused  from  attendance  on  Thursday  and 
Friday  next. 


August  7.]  CONSTITUTIONAL  CONVENTION.  IOI 

The  President  put  the  question  on  the  request  of  Mr.  Storm 
to  be  excused  from  attendance,  and  he  was  so  excused. 

Mr.  Cookinham  —  Mr.  President,  I  ask  that  Mr.  Gilbert  be 
excused  from  attendance  to-day.  He  is  detained  by  important 
business. 

The  President  put  the  question  on  the  request  of  Mr.  Gilbert 
to  be  excused  from  attendance,  and  he  was  so  excused. 

Mr.  Vedder  —  Mr.  President,  I  am  compelled  by  reason  of  busi- 
ness at  home  to-morrow  and  next  day,  to  ask  to  be  excused  for 
those  two  days. 

The  President  put  the  question  on  the  request  of  Mr.  Vedder 
to  be  excused  from  attendance,  and  he  was  so  excused. 

The  President  announced  the  order  of  general  orders. 

The  Secretary  called  general  order  No.  6,  introduced  by  Mr. 
Alvord,  to  amend  section  7  of  article  7,  relating  to  salt  springs. 

General  order  No.  7  was  not  moved. 

The  Secretary  called  general  order  No.  5,  being  the  report  of 
the  Special  Committee  on  Transfer  of  Land  Titles. 

General  order  No.  5  was  not  moved. 

The  Secretary  called  general  order  No.  7,  introduced  by  Mr. 
Holls. 

Mr.  Holls  —  Mr.  President,  by  request  of  a  number  of  gentlemen, 
who  wish  a  little  more  time  for  preparation  to  speak  upon  this  ques- 
tion, and  also  by  reason  of  notice  of  the  Committee  on  Cities  that 
they  desire  this  morning's  session,  I  have  concluded  not  to  move 
general  order  No.  7  this  morning;  but  I  would  beg  leave  to  state 
further  that  if  gentlemen  who  propose  to  speak  against  the  pro- 
posed amendment  would  communicate  with  me,  I  would  try  to 
move  it  at  a  time  that  is  most  convenient  to  all  concerned. 

General  order  No.  7  was  not  moved. 

The  Secretary  called  general  order  No.  14,  to  amend  article  3  of 
the  Constitution,  relating  to  public  officers,  introduced  by  Mr. 
Mereness. 

General  order  No.  14  was  not  moved. 

The  Secretary  called  general  order  No.  16,  to  amend  article  3, 
section  10,  introduced  by  Mr.  Vedder. 

General  order  No.  16  was  not  moved. 

The  Secretary  called  general  order  No.  8,  introduced  by  Mr. 
Lauterbach,  to  amend  article  2  of  the  Constitution,  relative  to 
suffrage. 


102  REVISED  RECORD.  [Tuesday, 

General  order  No.  8  was  not  moved. 

The  Secretary  called  general  order  No.  13,  relating  to  home  rule 
for  cities. 

Mr.  J.  Johnson  —  Mr.  President,  I  move  you,  sir,  that  the  Con- 
vention go  into  Committee  of  the  Whole  on  general  order  No.  13. 

The  President  put  the  question  on  the  motion  of  Mr.  Johnson, 
and  it  was  determined  in  the  affirmative,  whereupon  the  Conven- 
tion, resolved  itself  into  Committee  of  the  Whole,  and  Mr.  I.  S. 
Johnson  took  the  chair. 

The  Chairman  —  The  Convention  is  now  in  Committee  of  the 
Whole  on  general  order  No.  13,  relating  to  home  rule  for  cities, 
and  the  Secretary  will  read  the  amendment  by  sections. 

The  Secretary  read  section  i  of  the  proposed  amendment  as 
follows : 

Section  I.  The  Legislature  shall  pass  general  laws  for  incorpo- 
rating new  cities.  Every  city  shall  have  a  mayor,  who  shall  be  its 
chief  executive,  with  such  power  as  may  be  provided  by  law;  his 
term  of  office  shall  be  two  years.  Every  city  shall  have  a  common 
council,  which  shall  consist  of  one  or  two  bodies,  to  be  elected  with 
or  without  cumulative  voting,  or  proportionate  or  minority  repre- 
sentation, and  with  such  legislative  powers  as  may  be  provided  by 
law. 

Mr.  Johnson  —  Mr.  Chairman,  since  this  article  was  reported, 
there  have  been  two  or  three  suggestions  brought  to  the  attention 
of  the  committee  which  will  relieve  the  article  from  possible 
ambiguity.  I,  therefore,  offer  an  amendment  merely  to  correct  the 
article. 

The  Secretary  read  the  amendment  as  follows: 

On  page  i,  line  8,  after  the  word  "  such  "  and  before  the  word 
"  legislative,"  insert  the  word  "  municipal,"  so  that  it  will  read 
"  such  municipal  legislative  powers,"  etc. 

The  Chairman  put  the  question  on  the  adoption  of  the  amend- 
ment proposed  by  Mr.  Johnson,  and  it  was  determined  in  the 
affirmative. 

Mr.  Veeder  —  Mr.  Chairman,  it  occurs  to  me  that  the  word 
"  new  "  in  line  3  is  unnecessary.  An  article  incorporating  cities 
must  necessarily  apply  to  cities  which  are  unincorporated. 

Mr.  Johnson  —  Mr.  Chairman,  I  believe  there  are  other  amend- 
ments which  have  been  offered  and  which  are  before  the  House  at 
the  present  time. 


August  7.]  CONSTITUTIONAL  CONVENTION.  103 

The  Chairman  —  The  committee  is  acting  only  upon  section  i  of 
the  proposed  amendment. 

Mr.  Veeder  —  Mr.  Chairman,  there  is  only  one  amendment 
offered,  and  that  is  adopted.  I  move  to  strike  out  the  word  "  new  " 
in  line  3,  preceding  the  word  "  cities." 

Mr.  Johnson  —  Mr.  Chairman,  I  object  to  that  on  the  ground 
that  it  is  out  of  order.  My  objection  is  this,  that  the  entire  article 
is  now  before  the  Committee  of  the  Whole;  amendments  have  been 
offered  to  two  different  sections,  and  are  now  before  the  House, 
only  one  having  been  acted  upon,  and  that  until  those  amendments 
are  acted  on  no  other  amendment  is  in  order.  I  would  say,  Mr. 
Chairman,  that  it  is  the  wish  of  the  Committee  on  Cities,  and  they 
believe  that  it  will  greatly  aid  the  discussion,  to  discuss  the  entire 
article,  and  not  discuss  it  by  sections. 

Mr.  Veeder  —  Mr.  Chairman,  I  understood  that  we  were  still 
upon  section  i. 

The  Chairman  —  The  Chair  holds  that  section  i  must  first  be 
disposed  of. 

Mr.  Veeder  —  Mr.  Chairman,  are  we  not  still  considering 
section  i? 

The  Chairman  —  The  committee  are  still  considering  section  I. 
After  the  several  sections  have  been  acted  upon,  then  the  entire  pro- 
posed amendment  will  be  considered. 

Mr.  Veeder  —  I  do  not  understand  how  the  gentleman's  point  of 
order  can  be  put  if  we  are  still  under  section  i,  and  considering 
section  i. 

The  Chairman  —  The  Chair  does  not  sustain  the  point  of  order. 
The  Chair  decides  that  the  point  of  order  is  not  well  taken. 

Mr.  Choate  —  Mr.  Chairman,  I  move  that  the  entire  amendment, 
as  proposed  by  the  Committee  on  Cities,  be  read  through,  in  accord- 
ance with  rule  27  which  provides  that  the  entire  amendment  shall 
be  first  read  through  if  the  committee  so  direct.  It  appears  to  me  to 
be  impossible  that  any  one  section  shall  be  considered  intelligently 
unless  the  whole  be  under  consideration  by  the  committee;  and  I, 
therefore,  move  that  the  entire  amendment  be  read  through. 

The  Chairman  put  the  question  on  the  motion  of  Mr.  Choate,  and 
it  was  determined  in  the  affirmative. 

The  Secretary  read  the  entire  proposed  amendment  as  follows: 


104  REVISED  RECORD.  [Tuesday, 

Proposed    constitutional    amendment    to    provide    home    rule 

for  cities. 

The  Delegates  of  the  People  of  the  State  of  New  York,  in  Convention 
assembled,  do  propose  as  follows: 

ARTICLE  — . 

SECTION  i.  The  Legislature  shall  pass  general  laws  for  incorpo- 
rating new  cities.  Every  city  shall  have  a  mayor,  who  shall  be  its 
chief  executive,  with  such  powers  as  may  be  provided  by  law;  his 
term  of  office  shall  be  two  years.  Every  city  shall  have  a  common 
council,  which  shall  consist  of  one  or  two  bodies,  to  be  elected  with 
or  without  cumulative  voting,  or  proportionate  or  minority  repre- 
sentation, and  with  such  municipal  legislative  powers  as  may  be 
provided  by  law. 

Sec.  2.  All  elections  of  city  officers  in  all  cities,  and  of  county 
officers  in  the  counties  of  New  York  and  Kings,  and  in  all  counties 
whose  boundaries  are  the  same  as  those  of  a  city,  except  to  fill 
vacancies,  shall  be  on  Tuesday  succeeding  the  first  Monday  in 
November  in  an  odd  numbered  year,  and  the  term  of  every  such 
officer  shall  expire  at  the  end  of  some  odd  numbered  year.  The 
terms  of  office  of  all  such  officers  elected  before  the  first  day  of 
January,  one  thousand  eight  hundred  and  ninety-five,  which  as 
now  provided,  will  expire  with  an  even  numbered  year,  or  in  and 
before  the  end  of  an  odd  numbered  year,  are  extended  to  and 
including  the  thirty-first  day  of  December  following  such  expira- 
tion; those  which,  as  now  provided,  will  expire  in  an  even  numbered 
year,  and  before  the  end  thereof,  are  shortened  so  as  to  expire  at  the 
end  of  the  year  preceding  such  expiration.  The  term  city  officers,  as 
used  in  this  section,  includes  all  officers  elected  for  a  municipal  pur- 
pose in  any  part  or  division  of  a  city,  all  supervisors  elected  in  a  city 
or  part  of  a  city,  and  all  judicial  officers  of  inferior  jurisdiction. 

Sec.  3.  All  cities  of  the  State  are  classified  as  follows:  The  first 
class  shall  consist  of  cities  of  fifty  thousand  population  or  upwards, 
or  cities  that  may  hereafter  have  that  population  according  to  the 
then  last  State  enumeration;  the  second  class  shall  consist  of  all 
other  cities.  Laws  relating  to  all  cities  of  the  same  class  are  general 
city  laws.  Except  as  permitted  by  section  four,  the  Legislature  shall 
not  pass  any  law  relating  to  cities,  except  a  general  law,  or  a  general 
city  law,  as  to  any  of  the  following  subjects:  I,  streets  and  high- 
ways, but  this  section  shall  not  apply  to  bridges  or  tunnels  across 
the  Hudson  river  below  Waterford,  or  across  the  East  river,  or 
across  waters  which  form  a  part  of  the  boundary  of  any  city,  or  to 
approaches  to  any  such  bridge;  2,  parks  and  public  places;  3,  sewers 


August  7-]  CONSTITUTIONAL  CONVENTION.  105 

and  water-works;  4,  the  character  and  structure  of  buildings  as  to 
safety  and  security;  city  apparatus  and  force  for  preventing  and 
extinguishing  fires;  5,  salaries  of  city  officers  and  employes;  6,  ward 
boundaries;  7,  vacating,  reducing  or  postponing  any  tax  or  assess- 
ment; 8,  membership  and  constituent  parts  of  the  common 
council;  9,  the  powers  and  duties  of  the  common  council  or  any 
city  officer,  as  to  the  subjects  hereinbefore  enumerated.  But  the 
Legislature  is  not  prohibited  from  passing  laws  affecting  the  juris- 
diction or  power  of  any  city  as  to  such  subjects,  so  far  as  it  is  to  be 
exercised  outside  of  the  boundaries  of  such  city. 

Sec.  4.  Laws  may  be  passed  affecting  one  or  more  of  the  subjects 
enumerated  in  the  last  preceding  section,  in  any  city,  on  the  con- 
sent of  the  mayor,  or  the  mayor  and  common  council,  given  as  here- 
inafter provided.  The  enacting  clause  of  such  acts  shall  be,  "  The 
People  of  the  State  of  New  York,  represented  in  Senate  and  Assem- 
bly, and  by  and  with  the  consent  of  the  (here  insert  the  words, 
'  mayor  of/  or,  '  mayor  and  common  council  of/  as  is  required  for 
the  city  to  be  affected,  and  the  name  of  the  city),  do  enact  as 
follows."  After  any  bill  with  such  an  enacting  clause  has  been 
presented  to  the  Governor,  and  before  he  shall  act  thereon,  there 
shall  be  twenty  days  in  which,  as  to  any  city  of  five  hundred  thou- 
sand inhabitants  or  over,  according  to  the  then  last  State  enumera- 
tion, the  mayor  of  the  city  named  in  the  title  of  the  bill  may  consent 
thereto;  and  in  which,  as  to  any  other  city,  the  mayor  and 
common  council  thereof  may  consent  thereto,  but  no  such  consent 
shall  be  given  until  after  five  days'  notice  by  publication  in  the  news- 
papers designated  to  publish  city  notices,  stating  the  title  of  the  bill 
in  full,  and  that  the  city  officers  here  designated  for  such  city  are 
considering  the  question  of  consenting  thereto.  After  such  consent 
is  given  and  presented  to  the  governor,  he  shall  have  the  same 
power  as  to  such  bill  and  the  same  time  to  act  thereon  as  he  has 
as  to  other  bills.  The  legislature  may  also  pass  laws  as  to  any  city, 
affecting  one  or  more  of  such  subjects,  to  take  effect  on  the  consent 
of  a  majority  of  the  electors  thereof  voting  thereon,  expressed  at  a 
general  or  special  election,  as  may  be  provided  by  the  Legislature, 
not  less  than  thirty  days  after  the  passage  of  the  act. 

Sec.  5.  No  law  shall  be  passed  conferring  the  power,  to  appoint 
the  head  of  the  police  force  of  any  city  on  any  city  officer,  except 
the  mavor,  or  the  mayor  with  the  consent  of  the  common  council. 
The  Governor  may  remove  the  commissioners,  superintendent  or 
other  head  of  the  police  force  of  any  city  for  cause,  upon  charges 
preferred  before  him;  a  copy  of  such  charges  shall  be  served  upon 
the  official  sought  to  be  removed,  and  an  opportunity  afforded  him 


106  REVISED  RECORD.  [Tuesday, 

to  be  heard  in  his  defense.  Upon  such  removal  the  Governor  may 
appoint  the  successor  of  the  officer  or  officers  so  removed,  to  hold 
office  until  the  expiration  of  the  term  of  office  of  the  mayor  of  such 
city  holding  office  at  the  time  such  charges  are  preferred. 

Sec.  6.  For  the  purpose  of  securing  fair  elections,  equal  majority 
and  minority  representation  shall  be  provided  in  all  election  boards 
and  officers  of  cities,  and  no  law  shall  be  passed  impairing  such 
equality  of  representation,  so  far  as  it  is  or  at  any  time  may  be  pro- 
vided by  law.  For  the  purpose  of  securing  such  equality,  laws  may 
be  passed  providing  for  the  election  of  majority  and  minority  State 
election  commissioners  equal  in  number,  by  a  -vote  of  the  members 
of  the  two  branches  of  the  Legislature  convened  in  joint  session, 
each  member  of  the  Legislature  being  allowed  to  vote  for  but  one- 
half  of  such  commissioners;  and  the  members  of  the  Legislature  of 
one  political  party  shall,  in  no  case,  elect  more  than  half  of  such 
commissioners.  The .  Legislature  may  devolve  on  such  majority 
and  minority  commissioners  respectively,  power  to  appoint  city 
election  commissioners,  or  other  election  officers  of  any  city;  pro- 
vided, however,  that  such  majority  and  minority  commissioners 
shall  appoint  an  equal  number,  and  the  persons  appointed  by  the 
majority  and  minority  shall  have,  in  all  respects,  equal  power,  and 
appoint  an  equal  number  of  election  officers  for  election  districts 
and  otherwise. 

Sec.  7.  Nothing  in  this  article  contained  shall  limit  or  affect  the 
power  of  the  Legislature  to  consolidate  contiguous  cities,  or  annex 
contiguous  territory  to  any  city,  or  to  make  or  provide  for  making 
a  charter  for  any  city  created  by  such  consolidation;  but  after  the 
charter  of  any  city,  created  by  such  consolidation,  shall  have  become 
a  law,  such  city,  and  the  charter  and  laws  relating  thereto,  shall  be 
subject  to  all  the  provisions  of  this  article. 

Except  as  expressly  limited,  the  power  of  the  Legislature  as  to 
cities,  their  officers  and  government,  and  as  to  any  district  created 
by  law,  and  containing  a  city,  or  to  provide  for  the  removal  of  the 
mayor  of  any  city,  remains  unimpaired;  but  such  removal  shall  only 
be  for  cause  and  after  a  hearing. 

Mr.  J.  Johnson  —  Mr.  Chairman,  I  now  renew  the  two  amend- 
ments which  are  unacted  upon,  which  are  on  the  desk  of  the  Secre- 
tary. I  believe  they  are  now  in  order. 

The  Chairman  —  The  Secretary  will  read  the  second  amendment. 

The  Secretary  read  the  amendment  as  follows: 

Line  i,  page  2,  after  the  word  "  class  "  insert  "  and  laws  relating 
to  all  cities  of  one  class  and  one  or  more  cities  of  the  other  class." 
In  line  23,  page  2,  strike  out  the  words  "  a  general  law  or." 


August  7.]  CONSTITUTIONAL  CONVENTION.  IO/ 

Mr.  Johnson  —  Mr.  Chairman,  I  believe  that  is  all  of  the 
amendment.  The  reasons  for  that  amendment  I  will  briefly  state. 
The  restriction  on  the  Legislature  to  the  passage  of  general  city 
laws  or  general  laws  as  made  by  the  committee  was  intended  to  be 
quite  broad.  It  was  suggested,  and  I  think  there  is  much  force  in 
the  suggestion,  that  as  it  now  stands  the  entire  purpose  of  the 
amendment  might  be  defeated  by  laws  that  were  general  in  phrase, 
but  special  in  application  —  for  instance,  a  law  relating  to  cities  of 
over  a  million  and  a  half  of  population.  Therefore,  the  purpose  of 
the  amendment  is  to  allow  a  general  city  law,  which  refers  to  cities 
of  one  entire  class,  to  include  one  or  more  cities  of  another  class; 
so  that  a  general  city  law,  while  it  must  embrace  all  the  cities  of  one 
class,  may  be  yet  broader  and  take  in  one  or  more  cities  of  another 
class.  That  being  done,  giving  a  larger  definition  to  the  term 
"  general  city  law  "  —  a  definition  which,  we  believe,  it  is  impossible 
to  evade  —  the  provision  as  to  passing  general  laws,  which  has  been 
most  liberally  construed  by  the  courts,  we  ask  may  be  stricken  out. 
\\  c  ask  this,  Mr.  Chairman,  to  perfect  the  thought  of  the  com- 
mittee. If  unwise,  we  think  it  will  fully  appear  at  a  later  discussion. 

The  Chairman  put  the  question  on  the  adoption  of  the  amend- 
ment proposed  by  Mr.  J.  Johnson,  and  it  was  determined  in  the 
affirmative. 

The  Chairman  —  The  amendment  is  adopted,  and  the  Secretary 
will  read  the  next  amendment. 

The  Secretary  read  the  amendment  as  follows: 

In  line  18,  page  3,  strike  out  all  of  line  18  after  word  ."Assembly." 
Strike  out  all  of  lines  19  and  20  and  the  word  "  city  "  in  line  21,  and 
insert  in  lieu  thereof  "  for  the  city  of."  Here  insert  the  name  of  the 
city  to  be  affected,  so  that  the  sentence  shall  read  "  the  enacting 
clause  of  such  acts  shall  be:  '  The  People  of  the  State  of  New  York, 
represented  in  Senate  and  Assembly  for  the  cities  of '  "  here  insert 
the  name  of  the  city  to  be  affected  —  "  do  enact  as  follows." 

Mr.  J.  Johnson  —  Mr.  Chairman,  the  effect  of  that  is  merely  to 
change  and  shorten  the  wording  of  the  proposed  new  enacting 
clause.  It  does  not  change  it  in  any  respect  whatever  except  to 
shorten  it,  and  to  strike  out  the  provision  as  to  the  consent  of  the 
cities,  which  is  perhaps  not  proper  in  an  enacting  clause. 

The  Chairman  put  the  question  on  the  adoption  of  the  amend- 
ment, and  it  was  determined  in  the  affirmative. 

Mr.  Johnson  —  Mr.  Chairman,  I  now  desire  to  present  to  the 
Convention  a  few  thoughts  of  the  Committee  on  Cities  in  relation 


108  REVISED  RECORD.  [Tuesday, 

to  this  entire  article.     By  reference  to  rule  27,  the  entire  article  is 
now  before  the  committee. 

The  Chairman  —  Mr.  Veeder  offered  an  amendment  if  it  is 
insisted  upon. 

Mr.  Veeder  —  I  withdraw  it.  I  do  not  want  to  do  anything  not 
in  harmony  with  the  gentleman  at  all  and  I  withdraw  the 
amendment. 

Mr.  J.  Johnson  —  I  am,  of  course,  greatly  indebted  to  the  gentle- 
man from  Brooklyn  (Mr.  Veeder). 

Mr.  Hotchkiss  —  Mr.  Chairman,  I  have  no  desire  to  throw  any 
discord  into  the  proceedings  which  have  been  suggested  by  the 
Chairman,  but  would  it  be  impertinent  for  me  to  ask  in  what  manner 
the  gentleman  is  addressing  the  House.  There  are  certain  parlia- 
mentary forms  which  have  been  adopted  by  this  body,  none  of 
which  I  believe  have  been  so  far  observed. 

Mr.  Johnson  —  Mr.  Chairman,  I  understand  the  article  is 
before  the  committee  for  consideration.  If  it  it  not,  I  will  resort 
to  the  parliamentary  expedient  of  moving  to  strike  out  the  enacting 
clause  of  the  first  section.  I  do  not  deem,  however,  that  to  be 
necessary. 

Mr.  Mulqueen  —  On  that  I  move  the  previous  question. 

Mr.  Johnson  —  I  insist  I  am  in  order  without  that  motion.  If 
it  is  deemed  otherwise  I  shall  make  the  motion. 

Mr.  Bowers  —  We  do  no  understand  the  ruling  of  the  Chair. 
Does  Mr.  Johnson  move  to  strike  out  the  enacting  clause? 

The  Chairman  —  Mr.  Johnson  moves  to  strike  out  the  enacting 
clause. 

Mr.  Bowers  —  Is  there  any  objection  to  his  motion  prevailing? 

Mr.  Johnson  —  Mr.  Chairman,  I  believe  I  have  the  floor. 

The  Chairman  —  Mr.  Johnson  has  the  floor  and  will  proceed. 

Mr.  Johnson  —  The  question  that  is  presented  by  this  proposed 
article  on  cities  is  of  such  importance,  that  it  seems  very  proper  that 
the  Committee  on  Cities  should  present  to  the  Convention  the  views 
of  the  committee  under  which  it  was  framed.  But  before  entering 
particularly  on  that,  I  desire  to  call  the  attention  of  the  Convention 
to  the  form  of  the  two  reports  which  have  been  made.  The  article 
before  you  is  the  report  of  the  majority  of  a  committee.  It  covers  a 
very  important  branch  of  the  business  which  comes  before  this  Con- 
vention. The  minority  making  objections  failed  to  present  any 
other  article  or  any  other  proposition  whatever.  The  result  is  that 


August  7.]  CONSTITUTIONAL  CONVENTION.  109 

this  is  not  a  question,  at  least  for  the  present,  between  any  one,  or 
two  or  three  matters  now  presented  to  this  committee,  but  it  is  a 
question  as  to  whether  the  article  presented  is  better  than  the 
present  Constitution.  The  committee  in  presenting  their  article  pre- 
sented a  full  report  of  the  views  which  had  impressed  them  in  fram- 
ing the  article.  That  report  is  before  the  committee  as  Document 
No.  33,  and  also  the  objections  of  the  minority  report  of  the  com- 
mittee. We  ask,  and  I  think  the  entire  committee  would  be  pleased, 
if  the  statement  of  reasons  which  were  then  presented  may  be  fully 
read  and  considered  and  made  a  part  of  the  thought  of  this  Con- 
vention in  passing  upon  this  important  subject.  The  outstanding 
fact,  which  impressed  the  committee,  was  the  great  and  growing 
populations  of  our  cities.  With  the  dominant  fact  that  sixty-one 
per  cent  of  the  population  of  the  State  is  in  cities,  with  the  other 
great  fact  that  nearly  one-third  of  the  population  of  the  State  is  in 
a  single  city,  with  the  further  fact  that,  under  legislation  now  pro- 
posed for  the  Greater  New  York,  populations  actually  contiguous 
and  in  every  way  related  may  be  joined  in  a  munic-ipality  under  a 
single  administration,  embracing  three  millions  of  people,  with 
every  promise  and  expectation  of  growth,  with  the  further  fact  that 
one-half  the  population  of  the  State  is  in  the  city  lines  and  the  sur- 
rounding urban  territories  which  lie  south  of  the  northerly  portion 
of  Yonkers,  your  committee  approached  this  subject  with  the  belief 
not  only  of  the  great  importance,  but  of  the  very  considerable  diffi- 
culty of  framing  any  satisfactory  proposition.  We  must  not  forget 
that  we  stand  here  legislating,  in  theory  at  least,  for  twenty  years  to 
come.  In  those  twenty  years  the  great  aggregation  of  people  in 
cities,  which  is  the  marvel  of  the  century,  under  the  further  growth 
and  further  impulsion  from  economic  causes,  will  acquire  a  still 
larger  preponderance,  and  will  present  tests  of  our  system  of  popu- 
lar representative  government,  for  the  aid  of  which  the  best,  the  most 
considerate  thoughts  and  the  highest  patriotism  are  imperatively 
required.  At  the  outset  was  presented  the  question  which  seems 
to  be  in  the  minds  of  many  —  in  the  press,  in  the  literature  of  the 
day  —  the  question  of  "  home  rule  "  as  to  cities.  Before  approach- 
ing that  it  is  altogether  necessary  that  a  definition  of  that  word 
should  be  given.  What  mean  we  by  "  home  rule,"  speaking  in  a 
Convention  that  enacts  supreme  law  and  sits  not  again  for  twenty 
years?  Obviously,  we  mean  constitutional  home  rule,  so  far  as  it 
is  given;  home  rule  guaranteed  by  the  supreme  and  unchangeable 
law  of  the  State.  We  must  not  forget  that  under  the  present  system, 
under  the  present  Constitution,  enacted  in  1847,  there  is  the  pos- 
sibility, the  potentiality  of  conferring  on  cities  the  entire  conduct  of 


110  REVISED  RECORD.  [Tuesday, 

their  home  affairs.  Legislative  home  rule  is  within  the  power  of 
the  present  Constitution  in  all  its  entirety,  and  with  all  the  poss- 
sibilities  that  could  be  put  into  the  Constitution;  that  is  home  rule 
by  the  will  of  the  Legislature,  the  action  of  sovereignty  of  the  State. 
But  realizing  that  with  that  power  and  possibility  it  is  not  accom- 
plished, either  actually  or  within  the  hope  and  wish  of  people;  when 
we  approach  it  from  the  side  of  the  Constitution  we  then  are 
impressed  with  the  thought  that  so  far  as  any  degree  of  home  rule  is 
guaranteed  to  the  cities,  it  is  guaranteed  as  against  the 
power  of  the  Legislature.  Let  us  never  forget  that.  The 
problem  which  is  presented,  is  the  problem  of  giving 
some  degree  of  municipal  independence  to  the  magnificent 
and  growing  cities  that  are  the  diadem  of  our  State,  without  dis- 
membering the  sovereignty  of  the  State.  Whatever  we  give  here 
we  give  to  remain,  as  firmly  vested  in  the  city,  as  is  the  sovereignty 
of  the  State  in  the  State.  We  must  not  go  too  far;  nor,  in  the  judg- 
ment of  the  committee,  may  we  halt  until  something  has  been  done 
in  that  direction.  The  only  proposition,  other  than  the  one  now  pre- 
sented before  you,  which  came  from  any  member  of  this  committee, 
and  is  printed  in  the  overtures  or  propositions  for  amendment,  was 
the  proposition  offered  by  the  gentleman  from  Albany,  that  no 
private  or  local  law  should  be  passed  as  to  the  affairs  of  any  city, 
and  that  every  law  was  to  be  a  private  or  local  law  unless  it  affected 
alike  every  city.  In  the  judgment  of  some  members  of  your  com- 
mittee, at  least,  that  would  have  been  in  some  degree  dismember- 
ment of  the  sovereignty  of  the  State. 

Having  then  stated  briefly  as  I  am  able,  the  definition  of  con- 
stitutional home  rule,  I  proceed  to  the  necessity  for  it,  I  shall  not 
here  repeat  what  has  been  said  on  that  subject  by  our  committee  in 
Document  33.  The  controlling  factors  of  the  situation  are  these, 
that  the  cities  can  no  longer  look  to  the  government  of  the  State 
for  government,  for  not  only  do  they  dominate  the  State  and  the 
Legislature,  and  dominate  the  election  of  the  executive,  but  one  of 
the  cities  elects  nearly  one-third  of  the  Legislature,  and  if  the 
Greater  New  York  is  established,  that  city  alone  will  have  nearly 
one-half  the  Legislature.  It  is  impossible  when  cities  dominate  the 
State  in  population,  when  they  are  the  greater  portion  of  the  State, 
to  provide  or  to  imagine  any  method  for  preserving  better  govern- 
ment, for  ennobling  citizenship,  for  obtaining  the  best  results  that 
should  be  had  in  this  great  State  without  the  direct,  the  positive, 
the  permanent  appeal  and  demand  to  the  patriotism,  the  intelligence, 
the  civic  virtue  of  the  citizens  of  these  great  cities. 


August  ;.]  CONSTITUTIONAL  CONVENTION.  Ill 

Face  to  face  we  stand  to-day  with  the  proposition  that  the  good 
government  of  the  State  of  New  York,  whether  you  come  to  Albany 
or  go  to  the  cities  themselves  is  dependent  very  largely  in  the  result 
of  government  in  those  cities. 

With  that  preliminary  statement,  I  will  now  refer  to  the  second 
article  we  propose.  It  is  the  article  which  was  first  discussed  in  the 
report  which  I  have  referred  to.  That  article,  in  brief,  in  part  pro- 
vides that  elections  in  cities  shall  be  separated  from  elections  on 
State  and  national  matters.  I  am  permitted  by  Senator  McMillan, 
chairman  of  the  Committee  on  State  Officers,  to  say,  that  that  com- 
mittee will  report  a  provision  making  the  terms  of  State  officers  such 
that  they  may  be  elected  on  the  even  years.  I  understand  that  there 
are  many  —  1  do  not  know  precisely  how  the  committee  stand  on 
legislative  organization  —  who  believe  that  a  similar  provision  can 
be  made  as  to  the  election  of  Senators  and  Assemblymen.  That 
being  done,  the  federal  elections  being  already  in  the  even  years, 
the  odd-numbered  years  are  mainly  clear  in  cities,  and  altogether  in 
cities  that  have  the  same  boundaries  as  counties,  which  include  the 
two  largest.  The  cities  then  are  cleared  in  the  odd-numbered  years 
from  all  questions  for  determination  at  the  polls  in  November, 
except  the  question  as  to  who  shall  govern  the  municipality. 

Mr.  Chairman,  it  hardly  seems  necessary  to  say  much  on  this  sub- 
ject. The  minority  of  the  committee,  in  the  report  which  they 
present,  make  no  objection  whatever  to  that  proposition;  and  that 
proposition,  I  think,  in  another  form,  has  been  endorsed  repeatedly 
by  the  unanimous  vote  of  the  Committee  on  Cities.  So,  that  the 
proposition  to  give  the  cities  the  odd  years  for  elections,  so  far  as 
the  Committee  on  Cities  can  act,  comes  before  you  with  unanimous 
approval.  But  it  is  perhaps  not  improper  to  say  a  single  word  in 
support  of  the  general  proposition,  why  that  is  wise.  We  separate 
into  parties  on  questions  of  policies  which  we  can  state,  and  on 
which  minds  may  well  and  fairly  do  differ.  They  are  questions  of 
policy  of  government  and  foreign  policy,  questions  of  tariff  and  of  the 
great  affairs  of  the  nation  on  which  people  do  differ  and  always  have 
differed.  But  when  you  approach  the  affairs  of  cities,  Mr.  Chair- 
man, the  question  is  not  of  policy  in  the  main;  it  is  a  question  of 
right  and  due  administration.  It  is  a  question  of  efficient,  honest 
and  capable  administration.  There  is  no  question  of  policy  con- 
sidered between  the  parties.  I  doubt  whether  it  would  be  possible 
in  all  the  municipal  contests  that  have  arisen  in  the  last  five  years 
in  cities,  to  write  a  definition  of  the  differences  in  what  they  claim. 
It  is  a  question  there  not  of  measures,  but  of  men  and  men  to  execute, 
and  men  to  administer  and  men  to  perform  the  great  trusts  imposed. 


112  REVISED  RECORD.  [Tuesday, 

What  magnitude  do  these  questions  assume?  The  revenues  of  New 
York  are  thirty-six  millions  per  annum.  The  revenues  of  Brooklyn 
with  those  of  New  York  would  approach  fifty  millions  per  annum. 
The  revenues  of  the  government  of  the  United  States  prior  to  1860, 
the  entire  nation  with  its  army  and  its  navy  and  its  pension  list, 
the  nation  that  furnished  the  combatants  on  both  sides  for  the 
gigantic  war  of  1860,  were  but  sixty  millions.  So,  that  we  have 
questions  of  the  administration,  and.  disbursements  of  sums  of 
money,  approaching  the  revenue  of  the  nation  when  it  had  reached 
the  noon  prime  of  1860,  and  out-numbering  many  times  its 
revenues  of  but  a  few  years  before.  Your  committee  have  thought 
that,  if  you  are  to  devolve  upon  cities  the  great  question  of  who 
shall  best  administer  those  trusts,  it  is  necessary,  it  certainly  is 
proper,  that  you  should  leave  it  to  the  cities  to  determine,  unem- 
barrassed by  other  questions,  and  at  a  time  when  the  issue  of  tariff 
or  financial  policy,  or  of  domestic  or  foreign  questions  is  not  before 
the  people.  Therefore,  the  committee  have  unanimously  agreed 
upon  that  article. 

I  then  desire  to  refer  to  section  6  which  is  on  a  cognate  subject. 
The  purpose  of  that  amendment  I  do  not  think  is  altogether  under- 
stood. It  is  stated  in  objection  that  the  purpose  of  the  amendment 
is  to  have  a  State  commission  as  to  elections  and  in  some  way  to 
have  a  supervision  by  State  officials  which  has  not  existed  before. 
That  is  not  the  purpose,  but  it  is  an  incident  of  the  proposition. 
The  purpose,  the  fundamental  purpose,  of  that  proposition  is  to 
have  at  every  poll  at  election,  whenever  a  vote  is  registered,  when- 
ever a  vote  is  cast,  whenever  a  vote  is  counted  and  whenever  a  vote 
is  certified,  to  have  there  representatives  of  the  two  parties  in  actual 
antagonism  to  each  other.  That  is  the  purpose.  The  thought  of  the 
Committee  on  Cities  is  this:  that  there  is  no  way,  at  least  in  these 
times,  of  being  sure  that  the  vote  is  properly  counted  unless  it  is 
that  persons,  equal  in  power,  representing  the  opposed  elements 
at  the  election  count  it.  That  is  the  pivotal  thought.  It  is  asking 
no  more  for  elections  than  is  asked  for  every  trial  of  skill,  for  every 
proposition  of  any  kind  in  the  affairs  of  life,  that  the  deciding  power 
shall  be  neutral.  As  it  is  impossible  to  secure  a  neutral  power  the 
only  other  way  is  that  the  power  shall  be  equally  divided  between 
the  parties  in  opposition. 

Mr.  McDonongh  —  I  would  like  to  ask  the  gentleman  a  question. 
Mr.  Johnson  —  I  would  be  very  glad  to  answer  it. 

Mr.  McDonongh  —  How  long  do  these  commissioners  hold 
position? 


August  7-1  CONSTITUTIONAL  CONVENTION.  1 13 

Mr.  Johnson  —  That  is  not  deemed  a  constitutional  matter,  and  it 
is  not  intended  to  make  any  provision  as  to  that. 

Mr.  McDonough  —  Why  not  have  the  Legislature  fix  the  term? 

Mr.  Johnson  —  The  Legislature  will  fix  the  term.  It  is  a 
power  that  will  devolve  upon  the  Legislature.  The  further  propo- 
sition we  make  is  this,  that  these  election  officers,  representing  the 
parties  in  opposition,  must  hold  their  place  by  an  appointment 
derived  from  those  parties  themselves.  I  have  no  confidence  in  a 
proposition  which  says  that  the  vote  shall  be  counted  by  one  Demo- 
crat and  one  Republican,  or  two  Democrats  and  two  Republicans, 
if  they  are  all  appointed  by  the  same  side  and  by  the  same  political 
party.  There  is  nothing  better  established  than  that  it  is  a  decoy, 
a  false  light,  to  say  that  your  election  officers  shall  be  divided 
between  the  parties,  unless  they  are  appointed  from  or  by  some  one 
in  sympathy  with  the  respective  parties.  To  say  that  in  all  the 
great  cities,  or  either  of  our  great  cities,  there  is  no  one  bad  enough 
in  either  the  Democratic  or  Republican  side,  to  accept  an  appoint- 
ment from  the  opposite  party,  intending  to  sell  our  his  own  party, 
is  simply  absurd. 

The  counters  at  Gravesend  were  Republican  and  Democratic  in 
theory  and  name.  They  were  traitors,  alike  and  equally  to  honest 
election  and  to  the  cause  of  the  people.  I  need  not  go  further. 
I  think  you  will  find  that  wherever  any  great  fraud  has  been  perpe- 
trated at  elections,  it  is  because,  in  some  way  or  other,  the  check 
which  comes  from  opposing  elements  had  utterly  failed.  And,  so 
we  say  that  we  want,  not  what  I  would  call  bi-partisan  boards  of 
election.  That  name  does  not  give  the  entire  significance.  I  would 
want  double  boards  of  election,  emanating  from  independent 
appointing  power.  There,  I  believe,  you  will  find  safety;  safety 
not  only  for  the  votes  of  the  parties  from  which  they  come,  but  for 
the  votes  of  all  parties  cast,  because,  so  long  as  they  are  in  honest 
opposition,  combination  is  impossible,  and  every  vote,  whoever 
for,  must  be  counted.  Now,  sir,  I  am  not  aware,  and,  perhaps,  I 
shall  do  my  friends  on  the  committee  who  did  not  sign  this  report, 
injustice  to  suggest  that  on  the  principle  of  having  the  two  parties 
represented  at  the  court  by  their  own  appointees,  they  are  in  oppo- 
sition. I  understand  by  the  minority  report  that  some  portion,  at 
least,  of  their  objection  is  based  on  the  theory  that  it  should  go 
beyond  cities.  Whether  that  is  so  or  not  is  not  for  this  time  or  for 
the  committee  that  presented  the  report.  The  proposition  of  a 
fair  count  by  opposed  parties  T  think  every  member  of  this  Con- 
vention will  stand  upon. 
8 


114  REVISED  RECORD.  [Tuesday, 

Now,  gentlemen  of  the  Convention,  if  we  have  agreed  on  that 
proposition,  if  we  stand  together  on  that  platform,  I  have  but  this 
to  say,  that  the  Committee  on  Cities  diligently  and  earnestly 
sought,  to  find  an  appointing  power  in  which  it  was  certain 
that  the  minority  would  always  be  adequately  represented.  We 
could  find  it  nowhere  but  in  the  Legislature.  If  gentlemen  of  the 
minority,  if  any  one  here  will  suggest  any  other  point  in  the  whole 
fabric  of  government,  from  the  lowest  round  of  officialism  in  the 
cities  to  the  highest  round  in  the  Capitol,  where  it  is  certain  that 
you  will  always  find  such  a  power  resident,  that  the  minority  can 
be  represented,  our  difference,  then,  is  a  matter  of  detail  and  not 
of  principle.  But,  if  you  accept  our  principle  until  you  can  find 
some  other  way  to  carry  it  out,  we  insist  that  you  must  accept 
the  detail  of  the  proposition.  We  thought  to  leave  it  to  the  minor- 
ity candidate.  At  the  very  early  days  of  the  Convention  a  propo- 
sition was  introduced  looking  to  have  minority  election 
commissioners.  There  are  difficulties  about  that  which  seem  insur- 
mountable in  making  a  Constitution;  minority  candidates  may  die. 
It  might  happen  that  the  Governor  would  go  out  of  office  and  the 
Lieutenant-Governor  take  his  place  and  the  acting  Governor  and 
the  minority  candidate  for  Governor  would  be  from  the  same  party, 
and  there  the  principle  would  fail.  We  thought  of  going  into  the 
cities,  to  the  minority  candidates  for  mayor.  There  is  the  same 
difficulty,  and  we  gain  nothing.  We  thought  of  going  to  the 
common  council.  That  would  entirely  reject  the  principle  for 
which  we  seek.  I  believe  that  the  common  'council  of  New  York 
is  almost  unanimously  of  one  party.  Last  year  the  common  coun- 
cil of  Brooklyn  stood  fifteen  to  four  in  the  relation  of  party.  This 
year  it  stands  fifteen  to  four  exactly  the  other  way.  And,  so,  if 
you  allow  the  appointment  by  common  council,  the  majority  this 
year  could  unite  and  have  all  the  election  officers  emanate  from 
Republican  sources,  as  last  year  they  might  have  united  and  had  all 
the  election  officers  emanate  from  Democratic  sources.  There  you 
sacrifice  your  principle  instantly.  But,  looking  at  the  Legislature, 
we  have  its  well-known  history,  that  hardly  ever,  I  think  never  for 
a  generation,  never  within  my  knowledge,  has  it  happened  that 
the  majority  and  minority  parties  were  so  unequally  divided  that  an 
election,  each  voting  for  one-half,  would  not  give  the  minority  abso- 
lute protection  and  absolute  representation.  The  proposition  of 
the  committee  is  not  that  there  must  be  State  election  commis- 
sioners. -The  proposition  of  the  committee  is  that  there  must  be 
minority  and  majority  counters  appointed  by  the  majority  and 
minority.  If  you  can  get  them  in  the  city  outside  the  State, 


August  7-]  CONSTITUTIONAL  CONVENTION.  1 15 

get  them  there;  if  you  can  secure  them  by  election  at  the  polls, 
get  them  there.  If  you  can  get  them  anywhere,  get  them,  but  the 
mandate  of  the  proposed  Constitution  is  that  you  must  secure  it 
for  the  voters  of  cities,  and  it  makes  a  way,  which,  probably,  was 
not  constitutional  before,  an  added  way  by  which  it  may  be  cer- 
tainly accomplished. 

Mr.  Chairman,  I  would  add  another  word  to  the  thought  which 
I  was  presenting.  Take  the  city  of  Brooklyn ;  I  use  it  as  an  illustra- 
tion. Many  years  ago  a  law  was  passed  devolving  on  the  mayor, 
comptroller  and  auditor  the  power  to  appoint  the  election  commis- 
sioners, and  the  provision  was  that  any  one  of  the  minority  party 
could  appoint  one-half  of  the  commissioners,  and  that  worked  well 
for  many  years.  That  carried  out  the  spirit  of  the  law  for  many 
years,  until  finally  all  those  offices  became  of  one  party. 

Now,  the  condition  has  returned,  and  an  appointment  in  that 
way  would  give  full  and  adequate  minority  representation  under 
the  appointment  of  the  minority;  and  a  law  of  that  kind,  as  to 
Brooklyn,  there  being  more  than  one  party  in  control  of  the  gov- 
ernment, would  not  only  be  adequate,  but  would  carry  out  the 
provision  of  the  proposed  Constitution  in  its  entirety.  In  New 
York,  I  apprehend,  it  could  not  be  done  by  the  action  of  any  public 
official,  although  I  am  not  fully  advised.  But,  whether  it  can  or 
not,  we  point  out  a  way  to  which  resort  may  be  had. 

The  suggestion  is  made  that  it  may  be  in  the  minds  of  some  to 
leave  the  Governor  to  make  these  appointments.  That  becomes 
partisan,  and  partisan  in  the  source  of  power.  If  you  leave  it  to 
the  Governor,  you  must  leave  it  to  the  minority  candidate  for 
Governor.  If  you  are  with  us  in  the  proposition  that  it  is  right  to 
have  elections  protected  in  that  way,  go  with  us  with  the  lantern 
of  your  thoughts  and  find  a  place  where  else,  than  as  the  article 
proposes,  you  can  secure  this  great  result. 

Mr.  Chairman,  the  view  of  the  Committee  on  Cities  is  this,  that, 
if  something  salutary,  something  permanent,  something  that  will 
give  absolute  confidence  to  the  voters  can  be  carried  into  the  elec- 
tion ;  if  the  great  truth  can  be  told  from  this  body,  that  city  affairs 
are  not  State  affairs,  and  that  their  votes  shall  be  counted,  you  have 
advanced  very  far  on  the  road  which  we  all  may  tread  together 
towards  solving  the  problem  of  lifting  the  cities  to  a  higher  and  a 
more  perfect  function  in  the  business  of  the  State. 

Mr.  Chairman,  having  discussed  those  two  propositions,  I  will 
refer  to  the  provision  as  to  police. 

Mr.  Choate  —  Mr.  Chairman,  before  Mr.  Johnson  leaves  that 
subject,  as  this  seems  to  me  to  be  one  that  we  should  all  be  informed 


Il6  REVISED  RECORD.  [Tuesday, 

about  on  every  point,  I  would  like  to  ask  him  a  question,  which, 
if  he  is  prepared,  he  may  answer,  and  that  is,  why,  if  it  is  regarded 
as  an  absolute  conclusion  that  this  power  must  be  lodged  in  the 
Legislature  alone,  and  that  the  passage  of  laws  for  the  purpose  of 
securing  this  equality  of  representation  is  an  absolute  necessity, 
why  the  committee  leave  it  optional  with  the  Legislature  to  pass 
such  laws  or  not,  as  they  please,  and  why  they  do  not  make  it  man- 
datory upon  the  Legislature,  if  it  is  such  a  necessity  as  they  con- 
sider? I  observe  that  the  language  is  studiously  used  in  the  sixth 
line  at  page  four,  and  in  the  tenth  line  of  the  same  page,  making  it 
only  permissive  with  the  Legislature  to  carry  this  scheme  into  effect. 

Mr.  Johnson  —  Mr.  Chairman,  I  am  very  much  obliged  to  our 
honored  President  for  the  suggestion  which  brings  my  thought  to 
that  point,  and  I  wish  to  say  here  now  that  in  the  breadth  of 
courtesy  of  this  discussion,  which,  I  am  sure,  will  not  be  abused,  I 
shall  be  glad  to  be  interrupted  by  any  delegate  at  seasonable  times 
by  suggestions  or  questions  as  to  any  matter  to  which  I  may 
allude. 

The  question  asked  by  the  President  reveals  to  me  that  I  have 
not  quite  fully  conveyed  the  thought  that  I  intended  to  convey  in 
this  presentation.  The  first  thought  that  I  intended  to  convey  is 
in  the  first  sentence  at  the  top  of  page  five  of  this  article,  "  for  the 
purpose  of  securing  fair  elections,  equal  majority  and  minority 
representations  shall  be  provided  in  all  election  boards  and  officers 
of  cities."  That  is  mandatory;  you  shall  have  equal  representation. 
Then  comes  the  provision  that  where  you  have  taken  a  step  in  that 
direction  anything  which  puts  that  step  backward,  so  that  you  are 
not  as  far  advanced  as  before,  is  unconstitutional.  The  mandatory 
part  is  that  you  shall  have  it  in  some  way  or  other,  and,  if  you  have 
ever  secured  it,  you  may  change  the  form,  but,  if  you  take  away  that 
which  secures  it  without  providing  something  else,  your  legislation 
is  unconstitutional,  because  you  impair  the  principle. 

Now,  following  along,  speaking  for  illustration  in  relation  to 
Brooklyn,  a  law  that  the  mayor  should  appoint  one  part  of  the 
commissioners,  the  half  which  is  of  one  party,  and  that  the  comp- 
troller and  auditor  should  appoint  the  other  part,  would  comply 
with  the  mandate  of  this  law  at  the-  present  time,  because  it  would 
now  secure  it,  these  officials  being  of  different  parties.  A  pro- 
vision in  Brooklyn  that  the  election  commissioners  for  the  city 
should  be  elected  on  ballot,  each  party  voting  for  but  one-half, 
would  secure  it,  because  the  majority  party  is  not  double  the  minor- 
ity. A  provision  that  they  could  be  elected  in  certain  election 
districts  of  the  city  would  not  secure  it,  because  the  majority  party 


August  7-1  CONSTITUTIONAL  CONVENTION.  117 

would  be  quite  able  to  split  their  vote  and  yet  have  both  sets  of 
candidates  outrun  the  minority.  That  would  not  accomplish  it. 
We  understand  that  that  was  one  of  the  difficulties  that  existed  in 
the  Thirteenth  Ward  in  Troy,  where  the  disturbance  took  place 
and  the  crime  occurred  at  the  spring  election.  One  thing  may 
accomplish  it  here  and  another  there.  It  is  made  the  duty  of  the 
Legislature  to  accomplish  it,  leaving  them  to  say  how  it  shall  be 
done.  But,  says  the  Constitution,  with  this  mandate  we  give  you 
one  new  power,  one  new  source  of  power,  one  added  way,  and,  we 
say,  that  if  you  go  to  the  Legislature  and  have  a  law  passed,  and 
leave  it  to  the  Legislature  to  elect  two  or  more  State  commissioners, 
each  member  of  the  Legislature  voting  for  only  one-half,  that  they 
shall  then  stand  as  the  representatives  for  this  purpose  of  the  major- 
ity and  the  minority;  and  that  being  done  wherever  it  cannot  other- 
wise be  done,  or  in  every  case,  as  the  Legislature  may  direct,  they 
can  then  devolve  upon  these  State  officers  the  power  of  appointing 
election  commissioners  for  any  city.  It  is  entirely  a  necessary 
provision,  because  without  it,  it  is  probable  that  that  power  would 
not  exist  in  the  Legislature,  for  two  reasons:  First,  there  is  a 
question  as  to  minority  voting  under  the  present  Constitution,  and, 
second,  as  to  the  power  of  the  Legislature  to  appoint  State  officers 
who  can  exercise  municipal  functions.  It  is  a  necessary  provision 
to  provide  a  way  recognized  by  the  Constitution  that  will  always  be 
adequate. 

Now,  it  is  said,  or  at  least  it  may  be  said,  that  this  is  the  State 
interfering  in  elections.  I  shall  discuss  a  little  later  the  question  of 
the  State  in  the  matter;  but,  if  the  burden  of  interference  from  the 
State  is  so  just,  so  equitable,  so  fair,  that  all  that  is  accomplished 
is  that  the  same  degree  of  fairness  and  security,  which  all  men  say 
should  exist  in  every  contest,  from  a  baseball  match  to  a  yacht 
race,  if  the  burden  of  the  State  is  nothing  more,  then  that  burden 
is  light  and  easy  to  bear. 

Now,  Mr.  Chairman,  there  is  another  question  that  occurs  to 
my  mind.  Some  people  say,  why  not  say  the  majority  and  minority 
party,  as  represented  on  the  vote  for  Governor?  I  do  not  think 
that  is  wise,  and  I  will  state  why.  The  purpose  of  this  act  is  not 
to  distribute  patronage.  It  is  to  make"  fair  counting.  And,  if  these 
cities  divided  into  municipal  parties,  aside  from  State  parties  for 
the  elections  in  the  odd  years,  I  can  see  that  this  would  be  carried 
out,  were  it  divided  between  the  majority  -and  minority  municipal 
parties.  At  any  rate,  it  is  not  desirable,  unless  necessary  to  bring 
into  the  Constitution  the  question  of  parties. 


Il8  REVISED  RECORD.  [Tuesday, 

Mr.  Chairman,  1  will  now  pass  to  the  question  of  police,  referred 
to  in  section  5.  The  majority  of  the  committee  do  not  understand 
that  the  minority  ui  the  committee  make  or  signify  in  their  report 
any  objection  10  this  section.  This  part  of  the  article  has  been 
much  discussed  and  much  debated,  and  we  do  not  understand  that 
in  the  schedule  of  objections  they  have  said  anything  against  this 
section. 

The  first  thought  suggested  by  the  proposition  is  this:  It  is 
already  secured  by  the  Constitution  that  the  appointment  of  the 
officers  of  police  shall  emanate  from  the  cities,  and  the  first  provision 
is  that  the  Legislature  shall  never  again  pass  an  act,  such  as  was 
passed,  in  reference  to  Buffalo,  taking  from  the  mayor,  who  was 
elected  to  make  the  appointments  of  police  commissioners,  the 
power  so  to  do,  and  conferring  it  upon  subordinate  officers  who 
had  obtained  office  without  any  thought  of  that.  Such  an  appoint- 
ment, sir,  while  it  may  bear  the  name  of  home  rule  and  may  be 
within  the  catalogue  or  definition  of  being  done  by  the  city,  we 
think  is  a  false  token  which  should  be  expunged  from  the  possi- 
bilities of  legislation,  and  I  assume  that  there  is  no  difference  upon 
that  point.  We  then  come  to  the  single  other  provision,  the  power 
of  the  Governor  to  suspend  the  police  commissioner  and  to  appoint 
his  successor.  Assuming  that  the  gentlemen  of  the  committee  have 
read  the  report  of  the  Committee  on  Cities,  we  simply  say  that  it 
follows  the  analogy  as  to  sheriffs,  the  great  peace  officers  of  the 
State,  at  the  time  of  the  Convention  of  1846.  It  simply  finds  another 
office  or  class  of  officials  that  have  grown  up  and  supplanted,  in 
great  measure,  the  sheriffs,  and  we  say  the  rule  that  applies  to 
sheriffs  should  apply  to  police  officers.  To  show  the  committee 
how  fully  it  is  the  fact  that  the  power  of  the  police  officers  was 
practically  hardly  fully  known,  hardly  a  matter  of  general  and 
common  thought  in  1846,  I  purpose  to  call  the  attention  of  the  com- 
mittee to  chapter  315  of  the  Laws  of  1844.  Of  course,  it  is  within 
the  minds  of  all  that  New  York  was  an  old  city,  founded  at  the 
settlement  of  the  colonies,  and  that  its  growth  had  been  very  large 
from  the  beginning.  In  the  census  preceding  the  Convention  of 
1846,  it  had  a  population,  if  I  mistake  not,  of  371,000,  much 
greater  in  proportion  to  other  cities,  relatively,  I  think,  than  it  is 
now,  and  this  is  the  law  which  was  enacted  in  1844.  I  will  read 
the  first  section: 

"  An  act  for  the  appointment  and  regulation  of  the  police  of  the 
city  of  New  York."  I  cannot  find,  sir,  in  the  index  to  the  statutes 
the  word  "  police,"  except  as  applying  to  police  justices,  at  an 
earlier  date  than  this. 


August  ;.]  CONSTITUTIONAL  CONVENTION.  119 

I  read  from  the  act  of  1844: 

"Section  i.  The  watch  department,  as  at  present  organized,  is 
hereby  abolished,  together  with  the  offices  of  marshals,  street 
inspectors,  health-wardens,  fire-wardens,  dock  masters,  lamp  light- 
ers, bell  ringers,  day  police  officers,  Sunday  officers,  inspectors  of 
pawn  brokers,"  etc.  "  In  lieu  of  the  watch  department  and  the 
various  officers  mentioned  in  the  foregoing  section  there  shall  be 
established  a  day  and  night  police." 

I  read  that  act  to  show  that  in  New  York,  up  to  one  year  before 
the  election  of  those  delegates,  the  police  was  not  known  as  an 
independent  power,  as  it  exists  to-day,  and  I  have  searched,  with 
considerable  diligence,  in  the  statutes  relating  to  other  cities,  and 
have  not  been  able  to  find  that,  in  any  other  city,  prior  to  the  Con- 
stitution of  1846,  there  was  a  police  force,  so  called.  The  charter, 
under  which  Brooklyn  was  organized,  provided  for  a  night  watch, 
or  a  night  and  fire  watch,  and,  I  am  told  by  citizens  of  Albany, 
that  they  remember  well  when  the  police  was  organized  here,  long 
since  1846.  The  sheriffs  of  the  State  were  the  police  officers  of  the 
whole  State  and  of  the  cities  of  the  State  in  1846,  except  of  New  York 
city;  and  in  New  York  city,  while  power  had  been  conferred  on  a 
police  newly  organized,  in  common  thought  and  understanding, 
the  office  of  sheriff  retained  its  significance  as  the  great  peace 
officer  of  the  State.  In  1845  there  was  an  act  passed  conferring 
very  large  powers  on  sheriffs  as  police  officers.  But  the  authorities 
all  agree  that  the  power  of  a  sheriff  to  preserve  the  peace  is  inher- 
ent, original,  and  has,  I  think,  always  existed  in  the  office  under 
the  common  law.  And  so,  when  the  Constitution  said  that  the 
sheriff,  the  peace  officer  of  the  State,  might  be  removed,  they  estab- 
lished a  great  principle  and  riveted  it  in  the  forefront  of  our  supreme 
law.  There  was  an  omission,  an  exception,  the  police  officer;  the 
exception  has  grown  with  the  growth  of  cities  for  forty-eight  years, 
until  the  exception  has  seemed  to  supplant  the  principle.  But  the 
principle  remains.  It  was  accepted  by  the  Governor,  and  all  honor 
to  him  for  it,  when  he  removed  the  sheriff  of  Erie  county,  since 
we  have  been  sitting  in  Convention,  for  wrong  as  a  peace  officer. 
Will  the  gentlemen  recommend  that  when  our  seats  here  are 
vacant,  and  another  body  gathers  here  and  in  the  other  chamber, 
and  they  pass  a  law  forbidding  crime,  making  home  and  hearth  and 
life  safer,  will  gentlemen  say  that  they  may  pass  it,  and  print  it  in  our 
books  and  pay  for  it,  and  then  when  the  justice  of  the  State  is  thus 
formulated,  that  the  law  "Thou  shalt  not  kill,"  "Thou  shalt  not 
bear  false  witness,"  "  Thou  shalt  not  burn  or  maim  " —  will  they 
say  that  the  supreme  mandate  of  the  State  halts  on  the  border  of 


120  REVISED  RECORD.  [Tuesday, 

any  county?  Will  they  say  that  it  is  with  any  locality,  whether  it 
will  respect  that  law  or  not? 

Martin  I.  Townsencl,  forty-eight  years  ago  —  and  you  will  find 
it  in  the  fourth  volume  of  the  Convention  Debates  —  spoke  upon 
this  subject  grandly  and  well.  He  said:  "I  owe  the  State  alle- 
giance. The  State  owes  me  protection."  Have  we  no  rights  here 
in  Albany?  We  are  here  in  a  beautiful  city,  with  all  that  courtesy 
and  kindness  and  good  government,  so  far  as  I  know,  can  do  to 
make  it  comfortable  and  attractive  to  this  Convention.  But,  sup- 
posing it  were  otherwise.  Have  we  no  quarrel  with  the  State,  if 
we  are  here  as  sojourners,  if  life  or  property  were  insecure?  Are 
not  the  words  of  Martin  I.  Townsend  correct,  that  the  State  owes 
us  protection?  Unquestionably  so.  And  so  it  was  written  in  the 
Constitution  of  the  State  that  the  power  to  prosecute  crimes  is 
central,  is  in  the  Attorney-General,  if  the  Legislature  says  so. 
Again,  it  is  central,  in  that  the  Governor  is  given  the  power  to 
remove  district  attorneys.  I  honor  the  Governor  of  the  State  in 
this,  that  practically  under  his  power  of  removal,  by  the  pressure 
of  that  power,  he  appointed  the  assistant  district  attorney  that 
prosecuted  and  convicted  the  murderer  in  Troy  who  had  defiled  the 
election  and  added  a  martyr  to  the  cause  of  good,  government. 
That  was  central  power  exercised,  for  what?  To  punish  crime,  you 
say.  But  why  punish  crime?  Is  it  for  revenge?  "  Vengeance  is 
mine,  saith  the  Lord."  It  is  agreed  among  all,  I  think,  that  we 
punish  the  criminal,  not  to  give  him  his  deserts,  not  to  adequately 
reckon  with  him,  but  in  order  that  we  may  deter  and  prevent 
crime.  That  is  why  the  power  of  prosecution  is  central,  to  prevent 
crime,  to  make  life  safe,  to  make  the  humanities  of  life  possible. 
And,  if  the  power  to  prevent  crime  by  prosecution  is  central  in  the 
district  attorney  and  the  Attorney-General,  shall  it  be  said  that 
there  is  anything  wrong  in  the  proposition  that  in  great  emergency 
the  peace  officer  of  cities  may  be  removed,  as  have  been  the  peace 
officers,  the  sheriffs,  since  the  present  Constitution;  or  that  the  same 
rule  that  applies  to  the  elected  district  attorney  shall  not  apply  to 
an  appointed  police  officer? 

Mr.  Chairman,  the  Committee  on  Cities  deemed  this  of  surpassing 
importance,  and  I  will  attempt  to  tell  you  why.  We  have  in  the 
State  the  stealthy  crime,  the  thief  who  steals  in  the  night  or  way- 
lays us  in  the  dark.  That  we  shall  always  have;  and,  to  my  mind, 
that  represents  the  ordinary  fraudulent  vote  cast  at  the  elections; 
to  be  deprecated,  to  be  prevented,  to  be  crushed  out  and  punished, 
but  of  a  character  that  will  never  subvert  the  foundation  of  the 
State.  The  secret,  stealthy  crime  will  never  do  it.  But  when 


August  7.]  CONSTITUTIONAL  CONVENTION.  121 

wrong  comes  in  the  guise  of  organization,  of  marching  men, 
whether  they  come  from  a  foreign  country,  or  from  wherever  they 
come,  then  it  becomes  war,  and  war  may  subvert  the  State.  And 
analogous  to  that  is  this,  that  when  the  wrong  on  the  ballot-box 
grows  from  the  stealthy  crime  to  the  open  seizure  and  plunder  of 
the  franchise  of  the  people,,  then  it  becomes  dangerous  and  may 
subvert  the  State. 

Now,  gentlemen  of  the  committee,  I  see  that  many  are  incredu- 
lous concerning  this.  Perhaps  it  is  not  so.  Perhaps  it  is  safe  when 
the  guardians  of  the  peace  become  the  consorts  of  the  ballot-box 
stuffer;  but  we  have  such  cases,  and  I  will  enter  not  at  all  on  any- 
thing that  I  may  deem  debatable  or  partisan  in  this  proposition, 
when  I  say  that  the  police  have  organized  to  defraud  the  ballot-box, 
and  so  organized  in  Coney  Island,  driving  out  the  watchers,  and, 
with  their  clubs  and  pistols,  allowed  no  one  to  look  in  there,  except 
the  conspirators.  I  say  it  freely.  I  say  it  to  every  member  of  this 
Convention,  because  the  splendid  work  that  was  done  there  in  over- 
coming frauds  drew  men  from  no  one  party,  but  from  the  best  citi- 
zenship of  the  county,  that  which  is  of  the  noblest  citizenship  of 
the  State;  strong  men  from  both  the  great  parties  arose  to  crush 
out  the  wrong  and  to  give  its  definition  and  its  history. 

Now,  we  have  the  fact  conceded  that  the  police  there  became 
the  allies  of  the  ballot-box  stuffer  and  the  thug,  and  that  through 
that  alliance  there  was  a  certificate  given  which  gave  members 
seats  here  during  one-half  of  the  session.  How  difficult  it  is  to 
overthrow  it,  even  after  it  has  had  the  searchlight  of  indictment 
and  criminal  investigation.  We  have  it  that  that  was  done  there. 
I  read  from  Martin  I.  Townsend,  and  it  is,  to  my  mind,  one  of  the 
most  patriotic  and  one  of  the  strongest  efforts  that  I  ever  read. 
It  is  at  page  2950  of  Volume  IV  of  the  Debates  of  1867,  as  well  as 
page  2987,  and  I  find  that  Martin  I.  Townsend  there  states  —  yoii| 
have  the  word  of  Martin  I.  Townsend,  and  he  is  with  us  yet  —  that 
before  that  Convention  it  had  happened  that  one  party  secured  all 
the  inspectors  in  Troy,  in  certain  districts,  the  same  as  Gravesend, 
and  that,  with  that  done,  thugs  and  ballot-box  stuffers  were  brought 
from  New  York  to  stuff  those  ballot-boxes  and  the  police  were 
allies  with  them.  My  venerable  friend  who  serves  with  me  on  the 
committee  heard  those  words,  and  did  me  the  kindness  to  bring 
my  attention  to  what  was  stated  by  Mr.  Townsend,  as  well  as  by 
himself,  my  honored  associate  from  the  city  of  Troy.  That  was 
stated  in  the  heat  of  debate  and  reiterated.  Mr.  Brooks,  of  Staten 
Island,  and  Mr.  Murphy,  of  Brooklyn,  men  able  to  controvert  it, 
if  it  were  not  true,  were  here  and  did  not  deny  it,  and  it  stands 


122  REVISED  RECORD.  [Tuesday, 

admitted.  And  it  stands  admitted  that  that  police,  infuriated  by 
their  triumph,  in  the  city  of  Troy,  turned  out  to  sack  and  burn, 
and  when  young  men  gathered  arms  from  the  armory  and  came 
to  protect  the  venerable  citizen  who  was  thus  attacked,  the  local 
authorities  for  the  first  time  heard  that  there  was  war  and  came 
out  and  sent  the  young  men  home,  leaving  the  felons  of  disorder  and 
crime  undisturbed. 

Mr.  Chairman,  these  things  are  possible.  Have  they  occurred 
in  later  years?  Have  we  passed  that  danger?  We  have  the  knowl- 
edge that  they  occurred  in  Buffalo ;  knowledge  given  to  us  officially. 
We  have  the  information  that  they  occurred  in  Troy.  The  possi- 
bility of  the  police  and  the  ballot-box  stuffers  making  union  pos- 
sible and  controlling  this  State  is  something  the  State  must  look 
after;  and  so  we  present  these  provisions. 

Mr.  Chairman,  having  discussed  the  provisions  which  we  think 
will  give  better  government  to  the  cities  of  New  York  State,  which 
will  bring  municipal  questions  home,  which  will  enlighten  and 
strengthen  citizenship,  we  hesitate  not  to  say  that  if  that  were 
all,  if  they  were  adopted,  this  Convention  would  have  done  well.  It 
would  have  taken  a  long  march  up  the  height  and  towards  the 
sunlight;  and,  if  I  have  read  aright  the  objections  presented  by  the 
minority,  we  should  be  marching  pretty  nearly  in  solid  columns. 

Mr.  Choate  —  Mr.  Chairman,  may  I  ask  the  gentleman  another 
question  about  article  5  before  he  passes  to  the  next  subject,  and 
that  is :  What  is  the  reason  which  actuated  the  committee  in  giving 
the  Governor  the  power  of  removal  and  specifying  that  his  power 
of  reappointment  shall  extend  to  the  end  of  the  term  of  the  mayor 
in  office,  rather  than  to  the  end  of  the  term  of  the  officer  removed, 
which  would  seem  to  be  the  natural  course? 

Mr.  Johnson  —  Mr.  Chairman,  I  am  very  glad  for  the  thought 
in  the  question.  The  provision  as  to  district  attorneys,  as  to 
sheriffs,  as  to  county  clerks,  is  that  the  Governor  may  remove; 
and  power  is  given  without  question,  I  am  not  quite  certain 
whether,  by  the  Legislature,  under  the  clause  contained  in  the 
Constitution  or  by  the  Constitution  direct,  to  appoint  the  successor 
until  the  next  election.  Our  thought  is  that  this  provision  exactly 
harmonizes  with  that.  If  the  Governor  removes  a  sheriff  or  a 
district  attorney,  he  appoints  his  successor  until  a  successor  is 
elected  at  a  general  election.  Now,  take  the  position  of  police  com- 
missioner. There  can  be  no  election,  and,  certainly,  there  should 
be  none,  until  the  odd-numbered  year,  and  then,  if  a  commis- 
sioner is  elected,  he  will  be  elected  at  the  same  time  with  the  mayor. 
So  that  when  we  say  that  he  shall  hold  office  until  the  election 


August  7.]  CONSTITUTIONAL  CONVENTION.  123 

for  mayor,  when  we  say  that  the  appointee  shall  hold  office  until 
the  mayor  is  elected,  we,  in  effect,  say  that  he  shall  hold  office  until 
the  earliest  time  that  a  police  commissioner  can  be  elected;  or,  if 
he  is  an  appointed  officer,  we  then  say  that  he  shall  hold  office  until 
the  successor  of  the  appointing  power  is  elected.  We  will  assume 
that  the  necessity  of  removing  a  police  commissioner  will  never 
come  up  to  the  Capital  of  the  State  until  the  mayor  has  been  dere- 
lict, both  in  power  of  appointment  and  power  of  discipline;  and 
to  simply  have  the  power  of  removal  without  the  concurrent  power 
which  is  given,  as  to  district  attorneys  and  sheriffs,  would  simply 
say  that  you  change  the  name,  but  not  the  pain.  I  will  refer  to  a 
single  case  now.  We  have  the  Lexow  Committee,  and  I  am  not 
saying  that  it  makes  any  case  to  remove  anybody.  I  am  saying 
that  it  is  a  matter  of  great  and  grave  interest.  As  the  matter  now 
stands,  unless  a  metropolitan  police  district  was  formed,  which 
would  bring  in  other  cities  in  no  way  connected,  there  is  no  power 
now  resident  in  the  sovereignty  of  the  State,  Senate,  Assembly, 
Governor  altogether,  to  appoint  a  successor  of  these  police  officers. 
In  other  words,  they  could  dismember  the  police  and  make  them 
private  citizens.  But,  if  they  reorganized  the  police  or  have  a  police 
at  all,  they  must  practically  give  it  to  the  party,  vest  the  appointing 
power  in  the  persons,  who  appointed  the  present  police  force.  I  am 
not  suggesting  it  should  or  should  not  be  done.  I  am  suggesting 
that  a  condition  of  the  Constitution,  which  has  allowed  such  an 
investigation  as  that  and  yet  allows  that  which  is  so  far  short  of 
remedy,  should  be  provided  against. 

Mr.  Chairman,  having  referred  to  that,  I  will  pass  to  the  ques- 
tion of  what  comes  more  particularly  under  the  definition  of  home 
rule  for  cities.  Do  we  want  home  rule?  The  majority  say  they 
want  this  provision.  The  minority  say  they  want  home  rule,  but 
they  do  not  want  this.  What  they  do  want  they  have  not  informed 
the  Convention.  I  have  stated  early  in  the  hearing  that  we  have 
home  rule  already,  the  potentiality  of  it  in  the  Legislature.  The 
power  of  home  rule,  as  beautiful,  as  full  as  any  Constitutional  Con- 
vention could  suggest,  is  in  the  Legislature  already.  If  I  were  a 
member  of  the  Legislature,  I  would  go  much  further  in  the 
direction  of  home  rule  than  now,  because,  if  I  went  too  far,  I 
could  take  it  back  the  next  year  or  the  next  day.  If  I  went  too  far, 
there  would  be  a  remedy.  Any  instant  of  time  the  sovereignty  of 
the  State  could  take  it  all  back.  But,  if  we  go  too  far  here,  there 
is  no  way  of  taking  it  back,  and  here  we  must  not  err. 

What  is  the  first  requisite  of  home  rule  guaranteed  by  the  Con- 
stitution? Its  provisions  are  necessarily  prohibitory,  not  enabling. 


124  Ixl. VISED  RECORD.  [Tuesday, 

The  Legislature  has  the  power  now.  It  must  be  something  which 
is,  in  some  degree,  a  check.  Starting  with  that  thought,  what  shall 
we  do?  If  it  must  be  something  which  checks,  the  first  thing  to 
do  is  to  put  a  check  down.  We  must  first  put  some  check  on  the 
power  of  the  Legislature.  Where  shall  we  put  it?  My  answer 
is,  on  matters  which  are  entirely  in  the  cities.  I  desire  to  call  the 
attention  of  my  friends  to  this  —  my  friends  of  the  minority  —  this 
general  idea  of  what  matters  are  of  the  city  and  what  are  of  the 
sovereignty  of  the  State,  was  very  fully  presented  by  ex-Mayor 
Low  before  the  Committee  on  Cities.  It  was  in  writing,  and  the 
Committee  on  Cities  had  it  printed,  and,  more  than  that,  it  had  a 
copy  of  it  mailed  to  the  mayor  of  every  city  in  this  State,  asking 
whether  he  did  or  did  not  think  that  the  separation  into  powers 
municipal  and  powers  of  the  State  was  drawn  on  the  proper  line. 
I  have  heard  no  suggestion  that  it  was  not.  So  that  our  simple 
proposition  here  is,  that  we  should  give  a  certain  degree  of  municipal 
independence,  as  to  matters  purely  of  the  city,  as  to  that  which  does 
not  interest  the  community  outside.  I  will  state  the  distinction 
a  little  further.  Earlier  I  have  referred  to  the  facts  of  election  as 
being  a  State  function.  I  think  it  is  the  duty  of  the  State  to  see 
that  the  votes  are  counted.  As  was  said  in  our  report,  if  the  citizens 
of  the  city  of  Buffalo  desire  to  lose  their  money  by  bad  administra- 
tion, the  citizens  of  Rochester  are  not  prejudiced.  But,  if  the  citi- 
zens of  Buffalo  count  one  vote  illegally,  it  is  a  wrong  to  every  citizen 
of  the  State.  The  question  of  election,  the  question  of  education, 
the  question  of  health,  the  question  of  police,  it  seems,  certainly, 
are  matters  as  to  which  the  vital  concern  is  in  the  State.  I  am 
interested,  so  are  all  of  you,  as  to  all  of  these  matters  in  the  city 
of  Albany.  Provisions  as  to  health  cannot  be  confined  by  the 
boundaries  of  counties.  All  of  those  matters  your  committee  leave 
undisturbed;  and.  as  to  the  other  matter,  they  say  that  the  State 
may  pass  laws  which  affect  all  the  cities  of  a  class;  full  power  to 
pass  laws  as  to  cities  of  a  class  is  permitted.  Nothing  is  taken 
away  as  to  that. 

But,  in  order  to  prevent  the  injustice  of  special  legislation,  and 
the  danger  which  constantly  occurs  when  the  entire  structure  of  city 
government  is  open  to  the  attack  of  the  Legislature,  in  order  to 
provide  against  that,  the  committee  say  the  Legislature  should  not 
pass  special  laws,  unless  the  city  asks  it  or  consents  to  it.  Is  that 
right  or  is  it  wrong?  I  say,  gentlemen  of  the  minority,  have  we 
gone  too  far?  If  we  have,  then  no  degree  of  home  rule  is  possible. 
Will  you  reject  it  because  we  have  not  gone  far  enough?  If  so, 
remember  this,  and  remember  we  have  gone  farther  than  the  Legis- 


August  7.]  CONSTITUTIONAL  CONVENTION.  125 

lature  that  could  have  done  all  this.  They  never  attempted  it. 
We  have,  at  least,  moved  out  of  the  moss-covered  trenches  of  the 
past.  We  have  gone  farther  than  the  Legislature  of  1893;  we 
have  gone,  farther  than  the  Legislature  of  1892;  we  have  attempted 
that,  in  some  degree,  which  neither  political  party  has  attempted  by 
legislation  as  to  the  great  cities  in  the  last  twenty  years.  Each 
has  had  an  equal  opportunity  to  do  it.  If  we  have  done  better 
than  those  before,  it  is  worthy  of  acceptation,  because  it  is  some- 
thing. That  is  the  thought.  Then  back  of  it  is  the  other  thought, 
that  the  first  thing  you  can  do  in  this  matter  is  to  do  something 
in  the  way  of  prohibition.  Dive  down  and  find  an  anchoring 
place.  Find  something  of  certainty  and  validity  in  municipal  gov- 
ernment. But  what  else  should  follow;  what  should  we  next  do? 
I  think  it  would  be  quite  proper,  could  it  be  done,  to  develop  some 
of  the  powers  of  local  boards,  the  common  council.  But  where 
will  you  get  your  common  council?  Will  a  statute  create  a  common 
council?  Will  that  which  the  Legislature  of  twenty  years  has  not 
found,  be  produced  by  a  constitutional  enactment?  The  statute 
will  not  produce  an  army,  nor  will  a  statute  make  those  who  have 
not  borne  armor  able  to  carry  the  armor  and  the  weight  of  battle. 
The  common  council,  a  local  legislative  board,  must  grow,  and  so 
all  that  is  here  attempted,  as  to  the  cities,  is  to  so  provide  that  there 
is  power  to  create  a  legislative  board;  and  here  comes  in  the  prin- 
ciple of  home  rule,  that  when  it  is  once  created  that  power  cannot 
be  taken  away  without  the  consent  of  the  city,  except  by  general 
law.  So  that  there  is  here  prohibition,  some  degree  of  solidity; 
and  the  frame  work  on  which  there  may  be  developed  local  legisla- 
tive boards,  competent  and  able  and  helpful  to  comprehend  and 
solve  the  great  problems  of  civic  government.  It  is  said,  I  believe, 
in  the  report  of  the  minority,  that  the  principle  of  the  referendum 
is  in  some  way  violated.  That  is  very  easy  to  say.  Nothing  that 
has  yet  been  reported  from  the  other  side  has  violated  that  principle, 
because  they  have  reported  nothing.  So  that  I  am  not  able  to  say 
that  what  they  would  suggest  would  not  violate  the  principle.  When 
it  is  suggested  we  will  discuss  it  further.  It  is  the  thought  of  the 
committee  that  it  is  altogether  wise  to  leave  it  so,  that  the  Legisla- 
ture may  submit  the  great  question  of  municipal  concern  to  the 
city.  It  is  the  thought  which  was  carried  out  in  law  as  to  the 
Greater  New  York.  It  is  the  thought  which  comes  from  particular 
and  special  responsibility,  and  we  believe  that  it  is  altogether  wise. 
Now,  Mr.  Chairman,  I  will  go  back  to  the  first  section.  Perhaps 
it  will  be  quite  wise  to  rearrange  the  sections  of  this  article.  Our 
thoughts  sometimes  lead  onward  a  little,  day  after  day.  The  first 


126  REVISED  RECORD.  [Tuesday, 

proposition  is:  The  Legislature  shall  pass  general  laws  for  incorpor- 
ating new  cities.  Precisely  what  is  meant  by  that  I  do  not  think 
is  altogether  appreciated,  as  the  committee  suppose  its  effect  is. 
The  thought  of  some  is  that  cities  should  be  assimilated  in  gov- 
ernment, in  charters.  Your  committee  do  not  believe  that  it  is  any 
more  possible  to  say  that  these  great  communities,  with  their  mil- 
lions or  hundreds  of  thousands  of  population,  can  any  more  be 
brought  to  a  uniform  system  of  charter  government,  than  that  men 
can  be  all  brought  to  wear  the  same  shoes,  or  the  same  coat;  and 
it  would  be  as  useless  if  it  were  done  as  that.  We  would  leave  the 
cities  as  the  tree  is  formed,  with  its  natural  luxuriance;  with  its 
natural  irregularity;  and  not  as  though  painted  from  a  stencil  on  a 
wall.  We  would  leave  them  as  they  are,  but  we  say  that  when 
new  cities  come  and  knock  at  the  door  of  the  State  and  ask  for 
incorporation,  the  State  will  then  pass  a  general  law  under  which 
they  may  come  in  without  special  enactment.  We  do  not  suppose 
that  this  provision  forbids  special  acts  incorporating  cities.  We 
do  not  suppose  there  is  any  difficulty  in  any  of  the  large  villages, 
having  special  necessities  or  special  requirement,  coming  here  and 
obtaining  a  charter  adequate  to  their  needs.  We  suppose  it  would, 
in  fact,  not  be  done,  unless  there  was  a  strong  and  controlling 
public  sentiment  back  of  it.  But  we  simply  demand  that  there 
shall  be  a  general  act  under  which  cities  can  be  organized,  and  under 
which  invitation  the  inducement  and  the  probability  of  entering  will 
be;  and  that  in  the  new  cities  that  grow  up,  there  shall  be  in  the 
beginning,  and  in  the  formative  process,  a  full  degree  of  uniformity. 

As  to  the  suggestions  for  striking  out  the  word  "  new,"  so  as 
to  say  the  Legislature  shall  pass  general  laws  for  incorpo- 
rating cities,  I  see  no  need  of  it.  If  gentlemen  wish  to  go 
further,  I  would  suggest  to  leave  in  the  word  "  new  "  for  incorpor- 
ating cities  already  organized  and  those  hereafter  to  be  organized 
have  a  further  provision;  but  we  do  not  deem  this  to  be  wise. 

Now,  we  come  to  the  question  of  the  common  council  and  here, 
doubtless,  we  approach  a  question  that  is  somewhat  new;  that  is  a 
question  of  organizing  a  legislature  in  cities.  Bear  with  me 
thoughtfully  for  a  moment  on  that  question,  gentlemen  of  the  Con- 
vention. Study  the  charters  of  our  great  cities.  Find  how  little 
legislative  power  there  is,  almost  none  in  some  of  them,  and  how 
very  little  in  others. 

New  York  is  practically  governed  by  a  commission  appointed  for 
six  years,  by  a  magistrate  elected  for  two.  See  how  little  power 
'of  local  legislation  there  is.  Take  up  the  statute  and  see  how 
much  legislation  under  the  present  regime  is  had  here  in  Albany, 


August  7-]  CONSTITUTIONAL  CONVENTION.  127 

and  very  often  necessary  legislation.  Having  done  that,  take  a 
few  moments  with  the  Committee  on  Cities  and  contemplate  the 
proposition  of  trying  to  build  up  legislative  rule  as  to  municipal 
matters  in  cities,  so  that  the  cities  may  decide  and  determine  what 
they  shall  do,  as  the  counties  do  now  under  the  county  law,  or  the 
towns  under  the  town  law.  Stand  with  us  a  moment  at  the  thresh- 
old of  the  proposition,  and,  having  stood  there,  let  me  say  to  you 
this,  that  there  are  many  very  thoughtful,  very  earnest,  very 
patriotic  men  who  have  studied  this  problem  long  and  well.  They 
represent  a  great  body  of  citizens  throughout  this  State  who  come 
to  us  and  say :  "  To  build  up  the  common  councils  of  cities  you 
must  have  the  provision  of  cumulative,  or  proportionate,  voting  and 
minority  representation."  Why  do  they  say  it?  They  say  that  all 
the  elements  will  be  there;  those  who  are  for  the  State  and  those  who 
are  careless,  and,  if  there  be  any,  those  who  are  against  the  State 
and  would  rob  it;  and  they  say,  that,  all  being  there,  there  will  be  a 
least  one  who  will  raise  his  voice  as  an  alarm  and  a  protest  against 
any  wrong  there  contemplated.  They  say  minority  representation 
will,  at  least,  give  an  independent  minority  that  can  protest  and 
ring  the  alarm-bell  in  the  night,  and  citizens  can,  at  least,  have  an 
opportunity  to  rally  before  the  wrong  is  done.  That  is  their 
thought.  So  far  do  they  go  in  that  thought  that  those  gentlemen 
would  have  it  made  mandatory;  would  have  said  that  must  be 
done  in  the  larger  cities. 

Stand,  stand  again  with  the  Committee  on  Cities,  gentlemen, 
with  the  problem  of  city  government  weighing  heavily  on  con- 
science and  on  thought,  and  tell  me  whether,  while  not  agreeing 
with  these  gentlemen,  that  that  should'  be  mandatory,  or,  knowing 
whether  it  is  wise,  whether  or  not  you  would  say  that  you  will  not 
allow  it  to  be  possible.  A  friend  of  mine  says  it  is  an  experiment. 
I  have  here  —  but  I  will  leave  it  for  another  to  present  —  a  state- 
ment respecting  the  instance  in  which  minority  representation  has 
been  tried  in  this  State,  tried  in  other  States,  and  recommended 
by  State  executives  and  others.  "  But,"  you  say,  "  still  it  is  an 
experiment."  Granted.  Will  you  never  adopt  it  until  it  has 
ceased  to  be  an  experiment?  If  you  will  never  allow  it  to  be 
adopted  in  any  degree  until  it  has  ceased  to  be  an  experiment,  then 
you  will  insist  that  it  shall  never  be  adopted;  for,  while  it  is  merely 
an  untried  experiment,  you  say  that  experiment  shall  never  be  tried. 
The  proposition  that  minority  representation  may  be  given  in 
cities,  is,  we  think,  a  proper  concession,  a  necessary  provision. 

I  will  state  to  you  what  impresses  the  committee  as  the  reasons 
for  this.  I  do  not  stand  on  the  proposition  that  we  should  give  it 


128  REVISED  RECORD.  [Tuesday, 

because  it  is  recommended  by  such  a  body  of  citizens;  we  should 
try  it;  but,  I  believe,  there  is  a  reason  for  it,  and,  stating  that  reason, 
I  shall  not  longer  weary  the  patience  of  the  Convention. 

Mr.  Choate  —  We  all  want  to  understand  the  views  of  the  Com- 
mittee on  Cities  on  this  whole  subject.  My  excuse  for  asking  the 
questions  that  I  do,  is  that  I  feel  in  full  sympathy  with  their  general 
object  and  want  to  understand  the  provisions.  My  question  is  this, 
whether  the  committee  have  fully  considered  this  predicament? 
As  I  understand  the  scheme,  it  prohibits  the  Legislature,  from  the 
time  of  the  passage  of  the  constitutional  amendment,  from  interfer- 
ing with  what  may  be  called  the  internal  municipal  affairs  of  each 
city  without  the  consent  of  that  city,  and  it  proposes  to  confer  that 
whole  branch  of  legislation  upon  a  municipal  legislature;  but  the 
municipal  legislature  cannot  be  created  and  vested  with  enlarged 
powers  until  the  assent  of  that  city  has  been  received.  Now,  for 
instance,  take  the  city  of  New  York,  which,  in  the  experience  of  the 
last  twenty-five  years,  has  found  —  and  the  people  of  the  State  have 
concurred  with  it  —  that  it  was  dangerous,  impossible,  to  trust  these 
enlarged  powers  to  a  municipal  legislature;  and,  yet,  as  Mr.  John- 
son has  said,  they  do  require  constant,  annual  legislation.  Now, 
what  is.  to  be  done  in  the  meantime?  Take  the  city  of  New  York, 
for  instance.  Assume  that  the  city  of  New  York  has  not  consented 
to  the  erection  of  a  municipal  legislature,  with  these  enlarged 
powers  to  legislate  upon  these  internal  subjects,  and  the  hands  of 
the  Legislature  in  the  meantime  are  tied  from  interfering  with 
them.  Have  the  committee  considered  how,  in  that  interval  of 
time,  which  may  be  a  year  and  may  be  forever,  how  those  matters 
requiring  constant  legislation  are  to  be  taken  care  of? 

Mr.  Johnson  —  I  am  very  much  obliged  to  my  friend  for  the 
suggestion.  Of  course,  gentlemen  of  the  committee  will  quite 
agree  with  me  —  those  that  have  given  considerable  thought  to 
this  subject  —  that  we  are  not  quite  able  to  appreciate  what  should 
be  said  and  what  should  not  be  said  in  explanation  of  this  question, 
and,  therefore,  these  suggestions  are  very  helpful  to  your  committee 
in  making  this  presentation.  The  difficulty  presented  by  the  Presi- 
dent of  the  Convention  is  radical;  it  stands  on  the  outside  of  the 
whole  problem.  It  is  how  you  shall  pass  from  one  method  to 
another;  how  you  shall  pass  from  legislative  power,  exercised  at 
Albany,  to  legislative  power  exercised  at  home.  Where  shall  the 
power  reside  meantime?  The  wrong  is,  that  this  problem  should 
be  presented  to  the  Constitutional  Convention  at  all;  the  wrong  is, 
that  the  Legislature  should  never  have  attempted  to  solve  this  ques- 
tion by  enabling  acts  from  year  to  year.  They  have  not  solved  it. 


August  7.]  CONSTITUTIONAL  CONVENTION.  129 

The  question  stands  here  in  all  its  difficulty  and  all  its  importance. 
I  will  tell  you  how  we  believe  this  article  has  solved  the  problem. 
The  Constitution  must  take  effect  on  the  first  of  January.  As  I  have 
said,  the  taking  effect  will  not  create  a  common  council.  I  believe 
that  no  law  could  create  a  common  council.  It  must  be  a  growth, 
a  development,  from  the  better  thought,  the  enlightened  and  edu- 
cated patriotism  of  those  dealing  with  the  question.  But  what 
meantime?  The  cities  where  the  common  council  is  least  regarded 
have  come,  practically,  to  look  to  their  mayors  for  government.  All 
the  government  you  have  in  the  city  of  New  York  —  I  think  I  do 
not  exaggerate  —  nearly  all,  in  one  way  or  another,  flows  from 
your  mayor.  In  Brooklyn  it  is  so  very  largely.  You  have  prac- 
tically elected  him  to  run  your  city  in  connection  with  the  Legisla- 
ture. That  is  what  you  started  out  to  do.  When  this  constitutional 
amendment  takes  effect  and  you  want  legislation  for  New  York 
next  year,  to  carry  it  on  just  as  is  done  now  —  the  Legislature  and 
the  mayor  doing  it  together  —  the  mayor  will  apply  for  such  and 
such  laws,  and  the  Legislature,  under  this  co-operation  with  the 
mayor,  will  pass  them,  and,  practically,  the  system  will  continue  as 
it  is  now,  until  the  development  of  the  legislative  power  in  the  city 
takes  place.  I  will  say  right  at  this  point  that  I  met  the  other  day, 
in  a  business  may,  Senator  Edmunds,  of  New  Jersey,  a  man  who 
has  been  corporation  counsel  of  Jersey  City,  and  a  man  I  think  of 
as  much  experience  and  as  good  an  insight  into  such  problems  as 
any  person  that  could  be  named.  They  amended  their  Constitution 
a  few  years  ago  and  put  in  it  the. provision  that  nothing  but  general 
laws  should  be  passed  as  to  cities.  He  said,  "  I  hope  you  have  not 
put  in  this  provision."  I  showed  him  what  we  had.  He  said,  "  That 
is  right ;  we  cannot  exist  in  New  Jersey  without  special  laws ;  and  so 
the  whole  problem  seems  to  be  to  evade  the  Constitution  by  making 
laws  which  are  in  form  general,  but  are  in  effect  special;  you  solve 
it  exactly  by  allowing  special  laws  with  the  consent  of  the  city." 
He  said,  "  It  is  the  unwritten  law  of  New  Jersey;  no  Governor 
would  think  of  violating  it  or  ever  has  violated  it,  that  a  special  law 
could  not  be  passed  as  to  any  city  in  New  Jersey  without  the  con- 
sent of  the  city."  That  is  the  unwritten  law,  he  tells  me,  of  New 
Jersey.  I  say  that  it  ought  to  have  been  the  unwritten  law  of  this 
State,  and  that  we  ought  to  make  it  the  written  law.  It  is  pretty 
nearly  the  unwritten  law  of  this  State.  My  friend  who  has  repre- 
sented the  law  department  of  Brooklyn  will,  I  think,  agree  with  me 
that  it  is  very  rarely,  indeed,  the  case  that  a  Democratic  Governor 
signs  a  bill  as  to  purely  municipal  matters  —  what  are  made  muni- 


130  REVISED  RECORD.  [Tuesday, 

cipal  in  this  article  —  against  the  protest  of  the  mayor.  I  do  not 
think  he  did  it  once  last  winter,  against  a  Republican  mayor.  I  do 
not  believe  that  in  the  case  of  the  city  of  Brooklyn  —  and  if  I  am  in 
error  I  will  ask  Mr.  Jenks  to  suggest  the  exceptions  —  a  bill  has 
been  signed  by  the  executive  of  the  State  against  such  protest  as 
to  matters  that  we  make  home  rule  there. 

Mr.  Schumaker  —  I  will  answer  that  question.  In  the  organiza- 
tion of  the  metropolitan  police  board,  in  1857,  the  mayors  of  both 
cities,  New  York  and  Brooklyn,  objected  to  the  passage  of  that 
bill,  and  the  Governor  signed  it.  There  is  an  answer. 

Mr.  Johnson  —  I  am  very  much  obliged  for  the  answer  —  very 
much.  I  speak  advisedly.  It  shows  that  there  is  no  other  answer. 
I  have  a  right  to  say,  have  I  not,  that  that  is  the  only  exception? 
That  was  a  police  provision  as  to  which  this  home  rule  provision 
does  not  apply  — 

Mr.  Schumaker  —  It  does.  Your  party  afterwards  almost  unani- 
mously repealed  it. 

The  Chairman  here  called  the  speaker  to  order. 

Mr.  Schumaker  —  He  asked  for  some  information  from  the 
gentleman  who  had  been  corporation  counsel  of  Brooklyn,  and  I 
have  been  one,  in  stormy,  stormy  times;  and  I  have  answered  the 
question. 

Mr.  Johnson  —  The  proposition  which  I  made  was  this:  That 
as  to  those  matters  respecting  which  this  article  provides,  an  act 
should  not  be  passed  without  the  consent  of  the  mayor.  Such  an 
act  had  been  passed  in  the  last  twenty  years  without  the  consent  of 
the  mayor.  The  instance  stated  occurred  about  forty  years  ago  — 

Mr.  Schumaker  —  Oh,  no. 

Mr.  Johnson  —  We  will  make  it  thirty  if  he  says  so  —  and  did  not 
relate  to  matters  which  I  was  discussing,  and  shows  that  the  propo- 
sition which  I  stated  is  correct  —  that  as  to  sewers,  that  as  to  water- 
works, that  as  to  parks,  that  as  to  streets  and  highways,  it  was 
almost  the  unwritten  law  of  this  State  that,  except  in  case  of 
prodigious  emergency,  no  bill  should  be  signed  by  the  Governor 
without  the  consent  of  the  mayor.  I  say  it  is  very  nearly  the 
unwritten  law.  My  friend  from  Rochester  tells  me  that  it  would 
not  be  thought  of  that  such  an  act  should  be  passed  without  the 
consent  of  the  city  of  Rochester.  We  know  that  it  was  done  in 
Buffalo  two  years  ago  —  that  escaped  observation  in  the  reply  of 
my  friend,  but  that  was  a  law  respecting  the  police  — 


August  7.]  CONSTITUTIONAL  CONVENTION.  131 

Mr.  Becker  —  I  beg  to  correct  the  gentleman.  It  was  not  done 
in  Buffalo  with  reference  to  the  matters  as  to  which  home  rule  is 
preserved  by  this  provision  — 

Mr.  Johnson  —  I  had  so  stated  — 

Mr.  Becker  —  I  did  not  so  understand  it.  It  was  done  as  to  the 
police;  it  was  not  done  as  to  municipal  matters. 

Mr.  Johnson  —  Now,  Mr.  Chairman,  having  answered,  as  I  trust, 
this  question,  or,  at  least  shown  that  I  understood  the  question  of 
the  President,  as  I  trust  I  have  —  to  the  effect  that  matters  can  go 
on  very  much  as  they  now  are  with  this  system  of  independence 
injected,  and  having  shown  as  to  this  proposition  that  you  can 
erect  common  councils,  and  when  you  have  erected  them  that  you 
cannot  take  away  their  power  —  there  is  the  germ,  the  possibility, 
of  home  rule.  We  had  this  proposition  printed  two  weeks  before  it 
was  presented  here,  in  order  to  invite  criticism,  and  we  know  of 
hardly  a  suggestion  as  to  how  we  could  properly  go  farther  to-day 
in  constitutional  enactment  as  to  home  rule. 

Mr.  Alvord  —  Will  the  gentleman  give  way  for  a  moment? 

Mr.  Johnson  —  I  should  be  very  glad  to  give  way  to  my  friend 
from  Onondaga. 

Mr.  Alvord  —  I  ask  permission  to  move  that  the  committee  rise 
and  report  progress,  because  we  have  an  important  and  solemn 
duty  to  perform  which  will  require  all  of  the  ordinary  time  of  this 
Convention.  If  the  gentleman  will  consent,  I  move  that  the  com- 
mittee rise  and  report  progress  and  ask  leave  to  sit  again. 

Mr.  Johnson  —  I  am  quite  willing,  Mr.  Chairman.  I  think  the 
committee  has  been  very  patient,  and  I  am  quite  willing  that  the 
committee  shall  rise.  I  should  like  to  proceed,  however,  as  early  as 
may  be,  this  evening  if  there  is  no  objection. 

Mr.  Alvord  —  I  think  we  should  honor  the  memory  of  the  dead 
by  adjourning  until  to-morrow  morning. 

The  question  was  then  put  on  Mr.  Alvord's  motion  that  the  com- 
mittee rise,  which  was  determined  in  the  affirmative. 

The  President  resumed  the  chair. 

Mr.  I.  Sam  Johnson  —  Mr.  President,  the  Committee  of  the 
Whole  has  had  under  consideration  the  proposed  constitutional 
amendment,  printed  No.  376,  entitled  "  proposed  constitutional 
amendment  to  provide  home  rule  for  cities,"  have  made  some 
progress  in  the  same,  but  not  having  gone  through  therewith,  have 
instructed  the  chairman  to  report  the  fact  to  the  Convention  and 
ask  leave  to  sit  again. 


I32  REVISED  RECORD.  [Tuesday, 

The  President  put  the  question  on  agreeing  to  the  report  of  the 
Committee  of  the  Whole,  which  was  determined  in  the  affirmative. 

Mr.  Vedder  —  Mr.  President,  there  have  been  some  important 
amendments  made,  I  believe,  to  this  proposition  this  morning,  and 
I  would  suggest  that  those  amendments  which  have  been  adopted 
should  be  printed  in  italics,  so  that  we  may  know  what  they  are. 
No  one  knows  what  they  are  over  on  this  side. 

Mr.  Johnson  —  Mr.  President,  I  would  second  that  motion. 

Mr.  Kerwin  —  Mr.  President,  a  question  of  information.  I 
would  like  to  know  if  all  amendments  are  not  to  be  printed  in 
italics.  I  would  like  to  know  if  this  whole  report  is  not  to  be 
printed.  I  do  not  know  that  it  is  necessary  for  this  Convention  to 
instruct  our  printer  further.  I  think  that  we  already  have  rules 
that  call  for  it. 

President  Choate  —  The  President  understands  that  there  is  no 
present  rule  which  requires  the  printing  of  these  amendments  at  all, 
unless  it  is  so  ordered. 

Mr.  Kerwin  —  Mr.  President,  I  may  be  wholly  out  of  order,  but 
I  believe  that  the  report  of  the  Committee  on  Cities,  which  is  offered 
as  an  amendment  to  our  Constitution,  is  an  amendment,  and  our 
rules  call  for  the  printing  of  all  amendments  in  italics. 

Mr.  Hotchkiss  — -  Mr  President,  the  report  of  the  Committee  on 
Cities  is  not  in  the  present  Constitution.  It  is  an  amendment,  and 
our  rules  call  for  the  printing  of  each  amendment  in  italics. 

.  Mr.  Bowers  —  Mr.  President,  I  make  the  point  of  order  that  the 
motion  of  Mr.  Vedder  simply  calls  for  the  printing  of  some  amend- 
ments to  an  amendment  which  have  been  offered  here  to-day.  The 
rules  have  nothing  to  do  with  it,  and  the  proposition  of  Mr.  Kerwin 
has  no  application  to  Mr.  Vedder's  present  motion. 

The  President  —  The  Chair  is  of  the  opinion  that  the  motion  is  a 
proper  one  and  is  required  by  the  rules,  because  there  is  no  rule  for 
the  printing  of  these  amendments  offered  in  the  Committee  of  the 
Whole. 

Mr.  J.  Johnson  —  I  would  like  to  make  an  amendment.  It  was 
suggested  to  me  this  morning  that  the  editions  of  the  article  and  of 
the  report  were  exhausted,  and  a  gentleman  asked  me  if  I  would  not 
move  that  a  thousand  extra  copies  of  each  be  printed.  I  would  ask 
the  gentleman  from  Cattaraugus  to  amend  his  motion,  and  move 
that  the  article  be  printed  as  now  amended,  and  also  that  a  thou- 
sand copies  of  that  and  a  thousand  copies  of  the  report  be  printed. 


August  7.]  CONSTITUTIONAL  CONVENTION.  133 

Mr.  Vedder  —  Except  as  to  the  thousand  copies,  that  was  my 
motion  —  that  it  be  reprinted,  and  the  amendments  that  were 
inserted  in  the  last  Committee  of  the  Whole  be  printed  in  italics. 

Mr.  Johnson  —  Then,  Mr.  President,  the  provision  for  a  thousand 
copies  of  the  matter  is  all  the  addition  to  the  gentleman's  motion. 

Mr.  Vedder  —  Mr.  President,  I  accept  the  amendment. 

Mr.  Bowers  —  I  shall  oppose  that  resolution,  for  I  have  no  doubt 
that  when  this  matter  is  adopted  in  the  Committee  of  the  Whole 
some  gentlemen  other  than  the  chairman  of  the  Committee  on 
Cities  will  offer  a  large  number  of  amendments,  and  I  think  it  will 
be  quite  time  enough  to  reprint  this  article  when  all  the  amendments 
are  considered. 

Mr.  Hotchkiss  —  Mr.  President,  I  would  like  to  ask  the  chair- 
man of  the  Committee  on  Cities  if  the  amendments  which  he  pro- 
posed this  morning  to  the  amendment  introduced  to  the  House  by 
the  Committee  on  Cities,  are  anything  more  than  verbal. 

Mr.  Johnson  —  No,  sir;  it  only  gives  a  better  definition  to  the 
word  "  general." 

Mr.  Hotchkiss  —  Mr.  President,  my  own  impression  is  that  they 
are  not  substantial  enough  to  justify  their  being  printed,  and  I  am 
of  the  opinion  that  such  substantial  amendments  will  be  made  to 
the  whole  proposed  amendment  as  to  require  it  to  be  reprinted  and 
resubmitted  at  a  future  time. 

Mr.  Johnson  —  Mr.  President,  I  have  no  desire  to  have  the  matter 
printed  except  that  I  was  asked  this  morning  to  move  that  there  be 
some  more  copies  printed,  and  I  thought  if  some  more  copies  were 
to  be  printed  they  should  be  printed  as  amended. 

Mr.  Hotchkiss  —  Mr.  President,  I  have  no  objection  to  that.  I 
simply  refer  to  the  printing  of  the  amendments  themselves  as  dis- 
tinguished from  the  matter  alluded  to. 

Mr.  Johnson  —  The  motion  of  Mr.  Vedder  will  accomplish  our 
object,  and  I  presume  impose  very  little  expense  additional. 

Mr.  Green  —  I  think  it  would  be  better  to  let  this  discussion  pro- 
ceed further,  as  it  undoubtedly  will  bring  out  numerous  amend- 
ments. I  have  some  amendments  myself  to  offer;  and  the  result  of 
printing  now  will  be  that  we  shall  have  to  print  and  reprint.  If  the 
discussion  is  continued  it  will  develop  amendments  undoubtedly 
that  perhaps  will  meet  with  the  approval  of  the  mover  of  the  scheme. 
I  hope  the  motion  to  print  now  will  not  prevail. 


I34  REVISED  RECORD.  [Tuesday, 

Mr.  Dean  —  Mr.  President,  I  rise  to  a  point  of  order.  Under 
rule  51,  all  matters  referring  to  an  extra  number  of  printed  docu- 
ments must  be  referred  to  the  committee,  as  of  course. 

The  President  —  The  point  is  well  taken.  It  is  referred  to  the 
Committee  on  Printing. 

The  President  —  Mr.  Tekulsky  asks  to  be  excused  on  account 
of  illness. 

The  President  put  the  question  on  excusing  Mr.  Tekulsky,  and  he 
was  excused. 

The  President  —  Mr.  Hirschberg  asks  to  have  his  excuse,  which 
was  given  last  week,  continued  during  to-day. 

The  question  was  put  on  excusing  Mr.  Hirschberg,  as  requested, 
and  he  was  so  excused. 

Mr.  O'Brien  —  Mr.  Durfee  has  been  unable  to  return  up  to 
this  time,  and  he  desired  to  be  excused  for  this  session. 

The  question  was  put  on  excusing  Mr.  Durfee,  as  requested,  and 
he  was  so  excused. 

Mr.  A.  B.  Steele  —  Mr.  President,  the  committee  upon  resolu- 
tion on  the  death  of  Mr.  Van  Denberg,  appointed  this  forenoon, 
beg  leave  to  submit  the  following: 

The  President  —  The  Secretary  will  read  the  resolutions  pre- 
pared by  the  Special  Committee. 

The  Secretary  read  the  resolution  as  follows: 

Whereas,  Since  the  last  session  of  this  Convention,  one  of  the 
oldest  and  most  respected  delegates,  the  Hon.  Walter  L.  Van'  Den- 
bergh,  has  departed  this  life,  and  this  Convention  having  come  to 
recognize  in  the  deceased  the  earnestness  of  a  faithful  and  consci- 
entious member,  the  ability  of  a  good  lawyer,  a  wise  counselor,  the 
purposes  of  an  honest  citizen  and  the  character  of  a  good  man,  it  is, 
therefore. 

Resolved,  That  in  the  decease  of  Mr.  Van  Denberg,  we  acknowl- 
edge with  sincere  sorrow  the  irreparable  loss  which  this  Convention 
has  sustained,  and  being  reminded  by  it  not  only  of  the  uncertainty 
of  life,  but  of  our  own  duties  and  obligations  to  the  people  of  the 
State,  we  hereby,  in  the  shadow  of  this  bereavement,  consecrate  our- 
selves anew  to  perform  worthily,  conscientiously  and  faithfully  the 
work  entrusted  to  us  as  we  have  been  given  life  to  perceive  it,  and 
be  it  further 

Resolved,  That  the  President  of  this  Convention  appoint  a  com- 
mittee of  fifteen  delegates  to  attend  the  funeral  of  the  deceased,  and 
that  after  the  appointment  of  such  committee,  as  a  mark  of  esteem 


August  7.]  CONSTITUTIONAL  CONVENTION.  135 

and  respect   for  the  deceased,  that  this   Convention   be   declared 
adjourned. 

A.  B.  STEELE. 

JOHN  M.  FRANCIS. 

CHARLES  A.  HAWLEY. 

The  President  —  The  question  is  on  the  adoption  of  the 
resolution.  \ 

Mr.  A.  B.  Steele  —  Mr.  President,  while  I  had  not  the  honor  of 
the  personal  acquaintance  of  the  deceased  until  the  day  before  the 
organization  of  this  Convention,  I  did  have,  however,  the  honor  of 
hearing  him  spoken  of  by  his  neighbors.  Living  some  forty,  fifty 
miles  or  further  away,  and  although  not  being  in  the  same  judicial 
district  with  Mr.  Van  Denbergh,  I  had  occasion  to  hear  his  name 
mentioned,  not  only  in  connection  with  cases,  but  in  other  respects, 
and  the  name  as  attested  by  all  his  neighbors  and  by  all 
persons  who  knew  him,  was  that  he  was  one  of  the 
most  honorable  counsel  that  was  known.  In  referring  to 
him  the  people  of  his  county  would  speak  with  pride  of 
Mr.  Van  Denbergh,  the  quiet  but  honorable  counselor,  in  whom 
all  people,  regardless  of  political  faith  or  anything  else,  had  implicit 
confidence.  This  much  I  learned  of  him  before  I  had  the  pleasure 
of  his  acquaintance.  I  know  the  fact  also,  that  those  of  his  family 
have  passed  away  before  him,  and  he  alone  of  the  family  remained. 
He  did  not,  Mr.  President,  personally  seek  to  come  to  this  Con- 
vention, but  when  it  was  suggested  to  him,  he  felt  that  it  was  a  great 
honor,  and  wished,  although  in  failing  health,  that  he  might  be  of 
some  use  not  alone  to  the  people  of  his  own  county,  but  to  the 
people  of  the  State.  Hence  he  was  named  as  one  of  the  delegates 
and  came  here  in  that  poor  health,  and  although  his  health  con- 
tinued poor,  and,  were  he  like  most  men  would  have  prevented  him 
entirely  from  work,  yet  we  all  know,  in  that  enfeebled  condition,  and 
at  the  risk,  the  hazard  of  a  fatal  result,  he  continued  with  us,  laboring 
faithfully,  honestly,  earnestly  and  conscientiously,  I  think,  until  last 
Wednesday,  only  three  days  before  the  fatal  end  came. 

Mr.  Francis  —  Mr.  President,  the  memory  of  our  friend  and 
colleague  who  has  just  passed  away  will  be  very  precious  to  those 
who  know  him,  especially  those  who  knew  him  best.  My  personal 
acquaintance  with  the  deceased  began  with  the  opening  of  the  Con- 
vention in  May.  He  came  to  me  after  his  appointment  as  one  of 
our  committee,  the  Committee  on  Preamble  and  Bill  of  Rights,  say- 
ing that  though  his  health  was  feeble  he  hoped  to  have  strength  to 
render  some  service  in  the  work  that  was  before  us.  Faithful,  able 


136  REVISED  RECORD.  [Tuesday, 

and  valuable  that  service  has  been,  as  we  who  were  associated  with 
him  in  committee  conferences  and  discussions  can  all  testify.  His 
expositions  of  subjects  under  consideration  were  luminous;  his 
arguments  logical;  his  learning  always  manifest  and  impressive. 
There  was  the  spirit  of  grandness,  the  inspiration  of  conscientious 
belief,  with  the  forces  of  splendid  judgment  as  a  foundation  in  his 
interpretation  of  law  and  in  his  statements  of  fact.  And  so,  with 
health  very  frail,  our  friend  was  a  most  effective  worker.  To  the  last, 
less  than  a  week  ago,  he  was  with  us  in  council,  and  contributed  to 
our  instruction.  Daily  as  we  came  to  know  him  better,  noble 
manhood,  intellectual  strength,  moral  force,  appeared  more  and 
more  clearly  as  reflected  by  example  and  the  spirit  of  the  man.  Our 
friend  and  colleague  is  at  rest.  His  life's  work  finished,  and  it  may 
be  said  "  well  done." 

"There's  nothing  terrible  in  death; 
Tis  but  to  cast  our  robes  away, 
And  sleep  at  night  without  a  breath 
To  break  repose  till  dawn  of  day." 

Mr.  Lester  —  Mr.  President,  coming,  as  I  do  from  the  same 
Senatorial  district  as  that  from  which  the  honored  gentleman  whose 
death  we  now  deplore  came,  I  cannot  refrain  from  saying  a  few 
words,  however  unsatisfactory  and  inadequate  they  may  be,  upon 
the  question  of  the  adoption  of  the  resolutions  which  have  been 
reported  by  the  committee.  Mr.  Van  Denbergh  had  passed  the  age 
of  three  score  and  ten,  the  allotted  period  of  human  life,  and  the 
infirmities  of  advancing  age  and  disease  oppressed  him;  but,  sir, 
intellectually  he  retained  the  vigor  of  his  earlier  years;  he  retained 
his  positive  and  clear  views  upon  subjects,  his  strong  opinions  which 
those  who  did  not  sympathize  with  them  and  endorse  must  have 
accepted  with  respect,  and  I  know  that  the  members  of  this  Con- 
vention, although  sometimes  differing  from  him  in  opinion,  must 
have  respected  the  honesty  and  integrity  of  the  man.  It  was  not 
my  honor  to  enjoy  an  intimate  personal  acquaintance  with  Mr.  Van 
Denbergh.  Although  for  the  past  twenty  years,  during  which  we 
have  practiced  law  in  the  same  judicial  district,  I  have  had  the 
pleasure  of  knowing  him  and  occasionally  meeting  him,  and  I 
know  his  general  reputation  throughout  the  judicial  district  was 
the  reputation  of  a  capable  and  upright  lawyer.  I  have  known  Mr. 
Van  Denbergh  as  the  other  members  of  the  Convention  have 
known  him,  as  a  quiet,  unassuming  man,  laborious  and  painstaking 
in  all  the  duties  which  were  imposed  upon  him  and  deeply  inter- 
ested at  all  times  in  the  work  of  the  Convention.  Although  he  was 
a  man,  practical,  plain  and  having  matter-of-fact  ideas  upon  gen- 


August  7.]  CONSTITUTIONAL  CONVENTION.  137 

eral  questions,  and,  although  nothing  could  be  further  from  his 
own  mind,  yet  it  seems  to  me  that  the  picture  which  he  presented 
here,  striving  faithfully  with  a  conscientious  realization  of  his 
duties  to  accomplish  his  work  as  a  member  of  the  Convention,  had 
something  pathetic  about  it,  and,  sir,  there  is  in  his  record  here  a 
suggestion  of  heroism  as  he  stood  battling  with  the  encroachments 
of  age  and  disease  which  must  ever  shed  a  halo  about  his  memory. 
Mr.  President,  I  heartily  concur  in  the  resolutions  just  presented 
and  hope  that  they  will  be  unanimously  adopted. 

Mr.  Spencer  —  Mr.  President,  as  the  nearest  neighbor  of  our 
deceased  friend  and  associate,  I  ask  the  Convention  to  bear  with  me 
a  few  moments  while  I  pay  my  feeble  tribute  to  his  memory. 
I  formed  the  acquaintance  of  Mr.  Van  Denbergh  a  few  weeks  after 
my  admission  to  the  bar  and  at  that  time  and  for  several  years 
thereafter  my  business  called  me  to  his  village  at  stated  intervals 
of  two  weeks,  and  I  seldom  left  his  town  without  paying  a  visit 
to  him  in  his  office  for  the  purpose  of  a  social  chat.  My  acquaint- 
ance soon  ripened  into  a  warm  friendship,  which,  I  believe,  was 
somewhat  unusual,  or  is  somewhat  unusual  between  persons  with 
so  much  disparity  in  their  ages.  There  was  one  quality  which 
Mr.  Van  Denbergh  possessed  that  those  of  you  who  only  knew  htm 
as  he  appeared  on  the  floor  of  this  Convention  would  never  have 
dreamed  of,  and  that  was  the  rich  and  racy  humor  which  he 
possessed.  When  I  first  knew  him  he  was  apparently  in  the  prime 
of  life.  He  had  a  large  fund  of  humorous  anecdotes  which  he  loved 
to  relate  in  his  own  peculiar  fashion  to  his  intimate  friends,  and  I 
have  spent  many  an  hour  in  his  society  and  enjoyed  that  humor 
and  pleasantry  with  which  his  conversation  then  abounded.  He 
was  especially  rich  in  reminiscences  of  the  dead  and  gone  worthies 
of  our  profession  in  the  Mohawk  valley,  and  I  can  recall  many 
hours  of  pleasant  conversation  with  him  in  which  he  has  related 
the  incidents,  chiefly  humorous,  that  would  sometimes  move  him, 
of  the  many  men  who  have  adorned  the  bar  of  this  State  and  have 
resided  in  the  Mohawk  valley  between  Albany  and  Utica.  The 
last  reminiscence  that  he  related  to  me  was  upon  the  train  as  we 
were  going  home  from  this  Convention  the  day  that  the  Convention 
voted  to  disagree  with  the  report  of  the  Judiciary  Committee  upon 
a  proposition  to  change  the  method  of  selecting  jurors.  That  mat- 
ter was  uppermost  in  his  mind  and  he  recalled  an  incident  from 
the  life  of  a  former  judge  of  Schenectady  county,  which  I  will  give 
simply  to  illustrate  the  manner  in  which  he  remembered  these 
events.  He  said  he  was  present  in  court  at  the  conclusion  of  a 
tedious  and  unnecessarily  protracted  trial  of  a  brace  of  forgers,  and, 


138  REVISED  RECORD.  [Tuesday, 

speaking  of  the  influence  which  judges  exerted,  he  said  his  honor 
opened  the  charge  with  these  words:  "Gentlemen  of  the  jury,  I 
congratulate  you  that  you  have  at  last  got  these  notorious  criminals 
in  your  grasp."  Mr.  Van  Denbergh  said  he  well  remembered  the 
vise-like  emphasis  with  which  his  honor  brought  out  the  last  word 
of  that  sentence,  and  I  leave  you,  said  he,  to  imagine  the  influence 
and  conclusion  of  a  charge  which  opened  after  that  fashion. 
Mr.  Van  Denbergh  was  also  a  learned  and  diligent  lawyer,  faith- 
ful to  his  clients,  and  one  that  his  opposing  counsel  might  well 
stand  in  fear  of.  In  spite  of  his  modesty,  his  quiet  demeanor,  he 
understood  his  cases  well,  and  he  always  tried  them  for  all  they 
were  worth.  Whoever  engaged  him  as  counsel  secured  valuable 
and  faithful  service.  But  the  thing  in  Mr.  Van  Denbergh's  char- 
acter that  attracted  me  most  was  the  stern  principle  of  integrity 
which  possessed  him.  Ever  true  to  his  conscience,  his  sense  of  duty, 
he  was  faithful  in  every  place  in  life  that  he  occupied.  Gentlemen,  in 
losing  him  as  a  member  of  this  Convention,  we  lose  a  man  who  was 
sound  in  mind,  tender  in  heart,  courageous  in  spirit  and  stainless  in 
character. 

Mr.  Barrow  —  Mr.  President,  I  rise  to  second  the  adoption  of 
the  resolutions  which  have  been  offered.  For  the  past  three  months 
at  nearly  every  session  of  this  Convention,  it  has  been  my  pleasure 
and  my  good  fortune  to  sit  at  the  right  hand  of  Mr.  Van  Denbergh. 
On  each  morning  of  our  meeting  here  I  heard  his  cordial  greeting 
and  felt  the  friendly  pressure  of  his  hand.  Within  that  time  I  came 
to  look  upon  him,  not  only  as  a  friend,  but  as  a  pleasant  gentleman 
and  companion.  Thrown  together  in  this  way,  we  had  frequent 
consultations  and  exchanges  of  opinion  in  regard  to  different  pro- 
posed amendments  to  the  Constitution,  and  I  speedily  discovered 
(so  far  as  I  am  entitled  to  express  an  opinion  upon  that  subject) 
that  Mr.  Van  Denbergh  was  a  sound  lawyer,  and  that  he  possessed 
a  quick  and  active  mind.  Unfortunately,  his  strength  of  body  had 
been  greatly  undermined,  while  his  hearing  was  impaired.  These 
afflictions  had  prevented  that  participation  in  the  debates  and  busi- 
ness of  the  Convention,  which,  otherwise,  might  have  engaged 
him,  although,  I  think,  he  possessed  a  modesty  which  made  him 
shrink  from  making  speeches,  for  his  own  sake.  He  was  here, 
if  any  delegate  is  here,  not  to  serve  himself,  not  to  make  a  reputa- 
tion for  himself,  but  to  serve  and  benefit  the  State.  He  was,  in  no 
sense,  a  negative  man.  He  had  opinions  of  his  own,  and  in  those 
opinions  he  was  positive  and  firm.  He  was  very  desirous  of 
performing  fully  and  completely  all  his  duties  as  a  delegate  in 
the  Convention.  His  conscientiousness  was  acute.  With  full 


August  7.]  CONSTITUTIONAL  CONVENTION.  139 

knowledge  of  the  impairment  of  his  health,  he  faithfully  attended 
our  sessions.  This  desire  to  perform  his  part  cost  him,  in  my 
judgment,  his  life.  It  had  been  a  severe  tax  upon  his  strength  to 
attend  our  morning  sessions,  but  he  not  only  attended  those,  but 
he  came  from  his  home  to  attend  one  or  more  of  the  evening  ses- 
sions. My  recollection  is  that  he  attended  a  session  held  on  Wed- 
nesday evening  last.  The  next  day  he  attended  the  morning 
session,  but  complained  of  extreme  feebleness  and  I  observed  that 
his  color  was  bad,  and  his  lips  white.  I  earnestly  advised  him  to 
attend  no  more  evening  sessions.  He  replied  that  he  knew  he 
was  not  able  to  do  so,  but  that  he  felt  a  great  interest  and  wished 
to  be  present  whenever  it  was  possible.  My  recollection  is  that 
I  did  not  see  him  afterwards.  The  task  had  been  too  heavy,  the 
pace  too  great.  The  threatened  and  impending  bolt,  which  his 
faithfulness  to  duty  had  invited,  fell.  He  died  with  his  harness 
on,  laboring  for  the  State,  not  for  himself,  because  in  the  considera- 
tion of  his  years  he  could  hardly  have  hoped  for  any  of  the  personal 
benefits  of  his  labors. 

He  presented  to  me  the  characteristics  of  Abraham  Davenport, 
who,  upon  the  occasion  of  that  dark  day  which  occurred  in  the 
history  of  Connecticut,  when  the  whole  people  thought  it  was  the 
day  of  judgment,  and  when,  in  their  Convention,  the  frightened 
delegates  called  for  an  adjournment,  said :  "  God  will  do  His  work, 
let  us  attend  to  ours,"  and  who  thereupon,  without  figure  of  speech, 
spoke  straight  to  the  subject  then  under  consideration.  In  this 
way  Mr.  Van  Denbergh,  realizing  that  he  stood  in  the  very  shadow 
of  death,  attended  to  his  duties  and  did  his  work. 

It  is  fitting,  sir,  that  this  Convention  should  pause  in  its  labors 
and  pay  its  last  sad  tribute  to  the  memory  of  such  a  man.  It  will 
rekindle  in  us,  I  trust,  the  purpose  of  doing  our  duty,  as,  in  the 
language  of  the  resolutions,  "  we  have  been  given  light  to  per- 
ceive it." 

Mr.  Hawley  —  Mr.  President,  it  has  been  deemed  appropriate, 
inasmuch  as  Mr.  Van  Denbergh  was  a  member  of  the  committee  of 
which  I  have  the  honor  to  be  chairman,  that  I  should  second,  in 
some  brief  way,  the  resolutions  which  have  been  proposed.  I  have 
had  occasion  from  the  very  fact  that  Mr.  Van  Denbergh's  health 
was  so  frail,  that  he  was  unable  to  perform  all  the  duties  that  were 
cast  upon  him  here,  to  come  to  know  him  well  and,  indeed,  I  may 
say  intimately.  '  He  has  never  been  able  to  meet  with  my  com- 
mittee, except,  I  think,  upon  a  single  occasion,  but  he  has  been  so 
solicitous  about  the  duties  that  he  was  unable  to  perform,  so 
grieved  that  he  was  not  able  to  bear  all  the  burdens  that  were 


140  REVISED  RECORD.  [Tuesday, 

imposed  upon  him  here,  that  daily  he  sought  me  out,  asked  as  to 
the  state  of  business,  giving  me  his  views  as  to  questions  pending 
before  us  and  before  the  Convention,  until  I  have  found  him  to  be 
a  wise  and  discreet  counselor  and  a  thoroughly  upright  and  honest 
man,  a  man  with  convictions  and  with  the  courage  of  them.  It 
needs  not,  Mr.  President,  that  remarks  of  this  character  should  be 
prolonged  by  me.  I  have  heard  that  in  the  fastnesses  of  Switzer- 
land they  are  wont  to  bury  those  whom  the  State  delights  to  honor 
at  the  crossings  of  their  mountain  paths  and  then  to  mark  the 
place  with  a  pile  of  stone.  In  after  years,  as  passers-by,  citizens 
and  strangers,  go  by  the  spot  each  casts  upon  the  pile  a  stone, 
and  so  in  the  lapse  of  years  there  grows  an  impressive  and  endur- 
ing and  ever-growing  memorial  in  honor  of  the  departed  person. 
And  so,  Mr.  President,  I  have  felt  it  my  duty  under  the  circum- 
stances, to  add  these  few  brief  words  to  the  monument  which  we 
begin  to  rear  to-day  to  the  memory  of  the  honored  dead. 

Mr.  Alvord  —  Mr.  President,  in  a  long  legislative  career  it  has 
been  my  misfortune  to  be  present  upon  many  similar  occasions. 
All  I  have  to  say  at  present,  sir,  is  that  from  the  intimate  relations 
of  a  committeeman  with  the  gentleman  who  is  deceased,  I  learned 
to  love  him.  I  found  him  to  be  a  man  of  integrity,  high  order  of 
talent,  sound  judgment  and  logical  mind,  and  I  have  this  to  say,  in 
contrast  with  the  position  taken  by  my  friend  from  Seneca,  that 
in  our  continuous  sessions  each  and  every  day  when  this  body 
was  in  session,  he  was  present  and  at  the  post  of  duty.  Sir,  we  will 
not  lose  many  better  men  than  Mr.  Van  Denbergh.  -  Let  him  rest 
in  peace. 

Mr.  Schumaker  —  Mr.  President,  it  is  with  sadness  and  pain  that 
I  raise  my  voice  in  this  Convention  to  speak  of  the  death  of  Mr.  Van 
Denbergh,  who  was  my  relative  and  friend.  My  earliest  life  was 
with  him,  as  a  boy.  A  more  exemplary  boy,  a  more  noble  boy 
never  lived  than  Walter  Livingston  Van  Denbergh.  When  he 
grew  up  it  was  with  the  same  stamp  upon  his  character.  He  was 
a  very  noble  young  man,  a  very  able,  brilliant,  talented  man,  and 
it  was  not  until  he  was  forty  years  of  age  that  he  undertook  the 
profession  of  which  he  and  I  were  both  members.  But  he  craved 
for  it.  In  the  forwarding  business  with  his  father  and  his  relatives, 
Mr.  Cornelius  Gordonier,  who  was  once  Canal  Commissioner  of 
the  State  of  New  York,  who  was  his  partner,  he  yearned  and  craved 
for  the  law.  He  then  told  me,  in  the  old  familiar  words  of  our 
boyhood,  "  John,  I  am  going  to  be  a  lawyer.  It  will  come  some 
time."  And  it  did,  and  he  was  a  lawyer;  and  he  wanted  nothing 
else  but  high  standing  in  his  profession.  He  sought  no  office.  He 


August  7.]  CONSTITUTIONAL  CONVENTION.  141 

sought  nothing  but  to  attain  the  highest  knowledge  of  law,  and 
that  he  did  so  everyone  who  knows  him  will  maintain.  When  I 
met  him  in  this  Convention  and  he  shook  me  by  the  hand,  he  said: 
"  I  have  no  business  here  and  I  do  not  think  you  have.  The  latter 
part  of  our  lives  we  should  have  to  ourselves;  but  they  insisted 
upon  my  coming  here,  John,  and  I  think  it  will  kill  me."  And 
it  did. 

But  I  cheered  him  up  and  told  him  not  to  think  of  his  weakness, 
to  think  of  his  health  and  the  good  old  Dutch  adage:  "  Gesundheit 
ubcr  alles."  "  Well,"  he  said,  "  get  me  excused  from  this  evening's 
session."  I  said:  "Certainly."  There  was  an  evening  session,  in 
which  he  felt  interested.  After  a  little  refreshment  he  considered 
that  he  was  well  enough  to  come  up  here,  and  he  came  to  the  even- 
ing session,  a  week  ago  to-night. 

He  was  a  most  extraordinary  man.  He  came  up  by  himself, 
he  educated  himself,  and  his  thoughts  were  pure  and  good  and 
noble,  and  he  could  not  be  convinced  that  anything  was  wrong  or 
improper.  He  would  stand  for  the  right  to  his  death.  In  his  busi- 
ness he  was  a  forwarder.  Into  his  life  came  an  old  friend  of  mine 
and  of  the  President's,  Henry  Smith,  whom  Mr.  Depew  christened 
"  The  poor  boy  of  the  Mohawk."  All  that  there  was  of  Henry 
Smith  was  gotten  out  of  him  by  Walter  L.  Van  Denbergh.  He 
took  him  from  the  tow-path  of  the  canal,  he  made  him  a  steersman, 
he  made  him  a  captain,  and  he  made  him  their  agent,  Gordonier  & 
Van  Denbergh's  agent,  in  the  city  of  New  York.  From  there  he 
went  to  the  Assembly,  and  then  became  police  commissioner;  and, 
as  my  good  friend.  Mr.  Tucker,  said,  when  he  died  half  the  streets 
of  New  York  were  swept  by  the  procession  which  followed  him  to 
his  grave.  There  were  a  great  many  others  who  received  Mr.  Van 
Denbergh's  kindness.  Hundreds  of  others  that  I  can  name 
received  assistance  from  our  colleague.  He  did  it  ungrudgingly. 
He  did  it  with  a  nobleness  of  heart  which  a  great  many  would  not 
think  he  was  capable  of  having.  Wherever  he  found  a  good  cause 
his  hands  was  as  deep  in  his  pocket,  and  oftentimes  deeper  than 
he  could  afford  to  put  it,  to  assist  the  cause  of  charity.  The  latter 
part  of  his  life  was  a  sad  one.  He  went  with  his  wife  to  Washing- 
ton. He  was  childless.  They  had  had  but  one  child,  and  that 
died  in  its  youth,  and  the  first  day  the  poor  man  was  at  Washington 
his  wife  was  taken  with  pneumonia,  and  in  three  days  she  was 
brought  home  a  corpse.  That  almost  killed  him.  It  wrecked  his 
life.  He  has  been  a  sad,  sad  man  ever  since.  He  lived  the  life  of  a 
conscientious,  good  Christian  gentleman.  In  the  good  old  town 
of  Amsterdam  everyone  knew  him  to  respect  him.  He  had  a  kind 


I42  REVISED  RECORD.  [Wednesday, 

word  for  everyone,  and  no  one  ever  said  an  unkind  word  of  him. 
And  it  is  with  sorrow  and  sadness  that  I  stand  here  and  say  that  I 
have  lost  a  friend  and  relative  and  that  this  Convention  has  lost  a 
very  able  member. 

The  President  —  Is  the  Convention  ready  for  the  question  on 
the  adoption  of  the  resolution? 

Mr.  Dean  —  I  ask  that  the  question  be  taken  by  a  rising  vote. 

The  President  put  the  question,  and,  by  a  rising  vote,  it  was 
unanimously  determined  in  the  affirmative. 

The  President  —  The  Secretary  will  read  the  names  of  the  com- 
mittee appointed  to  attend  the  funeral  of  Mr.  Van  Denbergh. 

The  Secretary  read  the  names  of  the  committee  as  follows: 
Mr.   Alvord,    Mr.    A.    B.    Steele,    Mr.    Lester,    Mr.    Whitmyer, 
Mr.  E.  A.  Brown,  Mr.  Spencer,  Mr.  Francis,  Mr.  Augustus  Frank, 
Mr.    Woodard,    Mr.    Parker,    Mr.    Bigelow,    Mr.    A.    H.    Green, 
Mr.  Tucker,  Mr.  Schumaker  and  Mr.  Veeder. 

The  President  —  Under  the  resolution  as  adopted  the  Conven- 
tion stands  adjourned  until  to-morrow  morning  at  ten  o'clock. 


Wednesday,  August  8,  1894. 

The  Constitutional  Convention  of  the  State  of  New  York  met  in 
the  Assembly  Chamber  at  the  Capitol,  Albany,  N.  Y.,  Wednesday, 
August  8,  1894,  at  ten  A.  M. 

President  Choate  called  the  Convention  to  order. 

The  Rev.  Martin  Flipse  offered  prayer. 

Mr.  O'Brien  moved  that  the  reading  of  the  Journal  of  August  7 
be  dispensed  with. 

The  President  put  the  question  on  the  motion  of  Mr.  O'Brien, 
and  it  was  determined  in  the  affirmative. 

The  President  announced  the  order  of  introduction  of  memorials 
and  petitions. 

Mr.  Storm  —  Mr.  President,  I  have  the  honor  of  presenting  a 
memorial  of  the  Flushing  Village  Association,  which  relates  to  pool 
selling.  This  comes  from  a  very  reputable  and  representative 
source.  This  will  be  appreciated  by  the  Convention  when  I  men- 
tion that  it  is  composed  largely  of  lawyers.  This  was  sent  me  by 
a  committee  of  five,  with  the  request  that  it  be  read  before  the 
Convention.  I  expressed  to  them  my  doubt  of  this  being  done  on 
account  of  the  limit  of  our  time,  but  they  urged  the  matter  so 


August  8.]  CONSTITUTIONAL  CONVENTION.  143 

strenuously  that  I  promised  to  make  the  attempt.  Before  doing  so 
I  had  the  matter  read  for  the  purpose  of  ascertaining  how  much 
time  would  be  consumed  thereby  and  I  found  that  it  would  easily 
come  within  five  minutes.  I,  therefore,  trust  that  this  time  will  be 
given  for  the  reading  of  the  petition. 

The  President  —  No  objection  being  made,  it  will  be  read  by 
the  Secretary. 

The  Secretary  read  the  petition,  and  it  was  referred  to  the  Com- 
mittee on  Preamble  and  Bill  of  Rights. 

Mr.  Alvord  —  Mr.  President,  I  have  the  honor  to  offer  two  separ- 
ate letters  from  General  George  J.  Magee,  who  desires  that  they 
shall  be  referred  to  the  appropriate  committee.  The  first  is  on  the 
subject  of  taxation,  which  I  desire  to  have  referred  to  the  Com- 
mittee on  Finance  and  Taxation. 

The  President  —  It  will  be  so  referred. 

Mr.  Alvord  —  The  other,  Mr.  President,  is  on  the  question  of 
compulsory  voting,  which  I  desire  to  have  referred  to  the  Com- 
mittee of  the  Whole. 

The  President  —  It  is  so  referred. 

Mr.  Moore  —  Mr.  President,  I  desire  to  present  several  petitions, 
one  of  them  a  letter  from  the  president  of  the  Equal  Suffrage  Club, 
of  Euston,  for  the  political  equality  of  women;  second,  a  petition 
of  the  New  York  State  Grange,  and,  third,  a  petition  of  citizens  of 
Round  Lake,  for  the  full  enfranchisement  of  women. 

Referred  to  the  Committee  on  Suffrage. 

The  President  —  A  petition  has  been  received  from  G.  W.  Grant 
asking  for  a  provision  in  the  Constitution  that  for  all  future  amend- 
ments to  the  Constitution  a  majority  of  all  actual  voters  shall  be 
required. 

Referred  to  the  Committee  on  Amendments  to  the  Constitution. 

The  President  announced  the  order  of  notices,  motions  and  reso- 
lutions, and  the  Secretary  called  the  districts. 

Mr.  Storm  —  Mr.  President,  Mr.  Phipps  is  detained  away  from 
the  Convention  on  account  of  sickness,  and  asks  to  be  excused  from 
attendance  until  his  recovery. 

The  President  put  the  question  upon  the  request  of  Mr.  Phipps 
to  be  excused  from  attendance,  and  he  was  so  excused. 

Mr.  Powell  —  Mr.  President,  I  ask  that  Mr.  Cady  be  excused 
from  the  session  of  to-day.  He  has  been  suddenly  called  away  on 
important  business. 


144  REVISED  RECORD.  [Wednesday, 

The  President  put  the  question  on  the  request  of  Mr.  Cady  to 
be  excused  from  attendance,  and  he  was  so  excused. 

Mr.  Smith  —  Mr.  President,  if  it  is  in  order,  I  would  be  glad  to 
be  excused  for  non-attendance  yesterday.  I  was  in  the  hands  of 
my  dentist,  and  arrived  here  in  time  for  the  evening  session,  which 
I  found  had  been  dispensed  with. 

The  President  put  the  question  on  the  request  of  Mr.  Smith  to 
be  excused  from  non-attendance  at  yesterday's  session,  and  he  was 
so  excused. 

Mr.  Hottenroth  —  Mr.  President,  if  it  is  in  order,  I  would  ask 
unanimous  consent  to  call  attention  to  a  typographical  error  in  the 
Debates.  On  page  300,  in  the  second  column,  line  seven,  the 
word  "  registry  "  should  be  "  canvass." 

The  President  —  Gentlemen  will  make  a  note  of  the  correction. 

Mr.  Wiggins  —  Mr.  President,  I  ask  to  be  excused  from  attend- 
ance upon  the  Convention  on  Tuesday  of  next  week. 

The  President  put  the  question  on  the  request  of  Mr.  Wiggins 
to  be  excused  from  attendance,  and  he  was  so  excused. 

Mr.  Maybee  —  Mr.  President,  I  desire  to  be  excused  from  attend- 
ance upon  the  Convention  Thursday  and  Friday  of  next  week. 

The  President  put  the  question  upon  the  request  of  Mr.  Maybee 
to  be  excused  from  attendance,  and  he  was  so  excused. 

Mr.  Goodelle  —  Mr.  President,  I  move  that  introductory  bill 
No.  194,  introduced  by  Mr.  Tucker,  and  made  a  special  order  for 
this  evening,  be  recommitted  to  the  Committee  on  Suffrage,  retain- 
ing its  place  as  a  special  order  for  this  evening. 

The  President  —  The  Chair  understands  that  is  is  for  the  pur- 
pose of  some  formal  amendment. 

The  President  put  the  question  upon  the  motion  of  Mr.  Goodelle. 
and  it  was  determined  in  the  affirmative. 

Mr.  Redman  —  Mr.  President,  1  desire  to  be  excused  from 
attendance  to-morrow  and  next  day,  on  account  of  an  important 
meeting  of  a  board  of  supervisors. 

The  President  put  the  question  on  the  request  of  Mr.  Redman 
to  be  excused  from  attendance,  and  he  was  so  excused. 

Mr.  Becker  —  Mr.  President,  if  it  is  not  out  of  order,  I  desire  to 
present  two  memorials,  one  of  George  T.  Chester  and  others,  and 
the  other  of  J.  L.  Larned  and  others  in  favor  of  a  civil  service 
reform  amendment  to  the  Constitution. 

Referred  to  the  Select  Committee. 


August  8.]  CONSTITUTIONAL  CONVENTION.  145 

Mr.  A.  H.  Green  —  Mr.  President,  I  ask  leave  to  introduce  a 
constitutional  amendment,  and  to  have  this,  with  a  very  brief  one 
on  the  subject  of  pensions  to  aged  persons,  printed. 

The  President  put  the  question  on  granting  the  request  of 
Mr.  Green,  and  it  was  determined  in  the  affirmative. 

O.  374. —  Introduced  by  Mr.  A.  H.  Green,  proposed  constitu- 
tional amendment,  to  amend  article  8  of  the  Constitution,  in  relation 
to  reports  of  public  officers. 

Referred  to  the  Special  Committee  on  Proposed  Amendments. 

The  President  announced  the  order  of  reports  of  standing  com- 
mittees, and  the  Secretary  called  the  list  of  committees. 

Mr.  Hawley,  from  the  Committee  on  Corporations,  reported 
favorably  from  said  committee  an  original  proposed  constitutional 
amendment,  which  was  read  by  the  Secretary  the  first  and  second 
time. 

O.  375. —  Proposed  constitutional  amendment,  as  to  trusts  or 
combinations. 

Referred  to  the  Committee  of  the  Whole. 

Mr.  Barhite  —  Mr.  President,  in  the  absence  of  the  chairman 
of  the  Committee  on  Powers  and  Duties  of  the  Legislature,  and  at 
his  request,  I  desire  to  make  some  reports  from  that  committee. 
That  committee  is  of  the  opinion  that  proposed  constitutional 
amendment,  introductory  No.  2,  should  be  referred  to  the  Com- 
mittee on  Education.  I,  therefore,  move  that  the  Committee  on 
Powers  and  Duties  of  the  Legislature  be  discharged  from  further 
consideration  of  that  measure,  and  that  it  be  referred  to  the  Com- 
mittee on  Education. 

The  President  put  the  question  on  the  motion  of  Mr.  Barhite, 
and  it  was  determined  in  the  affirmative. 

Mr.  Barhite  —  Mr.  President,  I  also  move,  in  reference  to  intro- 
ductory No.  24,  that  the  Committee  on  Powers  and  Duties  of  the 
Legislature  be  discharged  from  further  consideration  of  that  meas- 
ure, and  that  it  be  referred  to  the  Committee  on  State  Finance  and 
Taxation. 

The  President  put  the  question  on  the  motion  of  Mr.  Barhite, 
and  it  was  determined  in  the  affirmative. 

Mr.  Barhite  —  Mr.  President,  I  move  you  that  the  Committee 
on  Powers  and  Duties  of  the  Legislature  be  discharged  from  fur- 
ther consideration  of  introductory  No.  134,  and  that  it  be  referred 
to  the  Committee  on  Governor  and  State  Officers. 
10 


146  REVISED  RECORD.  [Wednesday, 

The  President  put  the  question  on  the  motion  of  Mr.  Barhite, 
and  it  was  determined  in  the  affirmative. 

The  Secretary  read  the  following  reports: 

Mr.  Vedder,  from  the  Committee  on  Powers  and  Duties  of  the 
Legislature,  to  which  was  referred  the  proposed  constitutional 
amendment  introduced  by  Mr.  McDonough  (introductory  No.  286), 
entitled  "Proposed  constitutional  amendment,  to  amend  article  3 
of  the  Constitution,  relating  to  the  passage  of  laws,"  reported  in 
favor  of  the  passage  of  the  same,  with  some  amendments. 

The  Secretary  read  the  proposed  amendment,  as  amended,  by 
the  committee. 

Referred  to  the  Committee  of  the  Whole. 

Mr.  Barhite  —  I  am  requested  by  Mr.  Dean  of  that  committee, 
Mr.  President,  to  state  that  he  dissents  from  the  report  of  the 
committee  upon  that  measure. 

Mr.  Vedder,  from  the  Committee  on  Powers  and  Duties  of  the 
Legislature,  to  which  was  referred  proposed  constitutional  amend- 
ment, introduced  by  Mr.  Dean  (introductory  No.  23),  entitled  "  Pro- 
posed constitutional  amendment  to  abolish  all  commissions,  except 
those  constituted  of  elective  officers,  and  to  inhibit  the  power  of 
creating  permanent  commissions,"  reported  in  favor  of  the  passage 
of  the  same,  with  some  amendments. 

The  Secretary  read  the  proposed  amendment  as  amended  by  the 
committee. 

Referred  to  the  Committee  of  the  Whole. 

Mr.  Vedder,  from  the  same  committee,  to  which  was  referred 
proposed  constitutional  amendment,  introduced  by  Mr.  H.  A.  Clark, 
(introductory  No.  351),  entitled  "Proposed  constitutional  amend- 
ment, as  to  the  powers  and  duties  of  the  Legislature  in  forming  and 
dividing  counties,  and  to  add  a  new  section  to  article  3  of  the  Con- 
stitution," reported  in  favor  of  the  passage  of  the  same. 

Referred  to  the  Committee  of  the  Whole. 

Mr.  Barhite  —  Mr.  President,  I  am  requested  by  the  committee 
to  state  that  the  report  on  the  measure  just  read  was  not  unanimous, 
there  being  six  in  favor  and  five  against. 

Mr.  Goodelle,  from  the  Committee  on  Suffrage,  to  which  was 
recommitted  proposed  constitutional  amendment,  introduced  by 
Mr.  Tucker  (introductory  No.  194),  entitled  "  Proposed  constitu- 
tional amendment,  to  amend  article  2  of  the  Constitution,  so  as  to 
separately  submit  to  the  electors  of  the  State  the  question  of  woman 
suffrage,"  reported  the  same,  as  amended,  adversely. 


August  8.]  CONSTITUTIONAL  CONVENTION.  147 

Mr.  Goodelle  —  Mr.  President,  I  will  state,  to  avoid  misunder- 
standing, that  this  is  the  report  which  is  made  a  special  order  for 
this  evening. 

The  President  —  It  may  as  well  be  stated  that  the  change  in  the 
amendment,  which  was  shown  to  me  by  the  chairman  before  the 
beginning  of  the  session,  is  that  the  election  to  determine  the  matter 
would  be  held  in  November  of  next  year  instead  of  November  of 
this  year. 

Mr.  Goodelle,  from  the  same  committee,  to  which  was  referred 
proposed  constitutional  amendment,  introduced  by  Mr.  O'Brien, 
(introductory  No.  119),  entitled  "Proposed  constitutional  amend- 
ment, to  amend  section  3  of  article  2  of  the  Constitution,  as  to  suf- 
frage," reported  in  favor  of  the  passage  of  the  same,  with  some 
amendments. 

The  Secretary  read  the  proposed  amendment  as  amended  by  the 
committee. 

Referred  to  the  Committee  of  the  Whole. 

Mr.  Goodelle,  from  the  same  committee,  to  which  was  referred 
the  proposed  amendment,  introduced  by  Mr.  Roche  (introductory 
No.  100),  entitled  "  Proposed  constitutional  amendment,  to  amend 
section  i  of  article  2,  prescribing  the  period  of  citizenship  as  a 
prerequisite  to  the  right  to  vote,"  reported  in  favor  of  the  passage 
of  the  same,  with  some  amendments. 

The  Secretary  read  the  proposed  amendment  as  amended  by  the 
committee. 

Referred  to  the  Committee  of  the  Whole. 

Mr.  Goodelle,  from  the  same  committee,  to  which  was  referred 
the  proposed  amendment,  introduced  by  Mr.  Gilbert  (introductory 
No.  8),  entitled  "  Proposed  constitutional  amendment,  to  amend 
article  2  of  the  Constitution,  in  relation  to  the  qualification  of 
voters,"  reported  in  favor  of  the  passage  of  the  same,  with  some 
amendments. 

The  Secretary  read  the  proposed  amendment  as  amended  by  the 
committee. 

Referred  to  the  Committee  of  the  Whole. 

Mr.  Tucker  —  Mr.  President,  as  a  member  of  the  minority  of  that 
committee,  I  desire  time  to  make  a  minority  adverse  report. 

The  President  —  The  rules  allow  the  minority  the  right  to  bring 
in  a  minority  report  at  any  time  before  the  matter  is  finally  dis- 
posed of. 


148  REVISED  RECORD.  [Wednesday, 

Mr.  Goodelle,  from  the  same  committee,  to  which  was  referred 
the  proposed  amendment,  introduced  by  Mr.  Nichols  (introductory 
No.  253),  entitled  "  Proposed  constitutional  amendment,  to  amend 
section  4  of  article  2  of  the  Constitution,  relating  to  registration  of 
voters,"  reported  in  favor  of  the  passage  of  the  same,  with  some 
amendments. 

The  Secretary  read  the  proposed  amendment  as  amended  by  the 
committee. 

Referred  to  the  Committee  of  the  Whole. 

The  President  announced  the  order  of  reports  from  select  and 
special  committees. 

The  Secretary  announced  appointments  on  committees  to  fill 
vacancies  occasioned  by  the  death  of  Mr.  Van  Denbergh,  as  follows : 

On  Preamble  and  Bill  of  Rights,  Mr.  W.  H.  Steele. 
On  Corporations,  Mr.  Lester. 

The  President  —  The  special  order  for  this  morning  is  the  adverse 
report  of  the  Committee  on  State  Prisons  on  proposed  constitu- 
tional amendment,  to  amend  section  5  of  article  i  of  the  Constitu- 
tion, relating  to  the  abolition  of  the  death  penalty,  and  the  question 
is  upon  agreeing  to  such  adverse  report.  The  Secretary  will  please 
read  the  proposed  amendment  of  which  this  report  is  the  subject. 

The  Secretary  read  the  proposed  amendment  as  follows: 

Proposed  constitutional  amendment,  to  amend  section  five  of  article 
one  of  the  Constitution,  providing  for  the  abolition  of  the  death 
penalty  as  follows: 

The  Delegates  of  the  People  of  the  State  of  New  York,  in  Convention 
assembled,  do  propose  as  folloivs: 

Section  five  of  article  one  of  the  Constitution  is  hereby  amended 
so  as  to  read  as  follows: 

ARTICLE  I. 

Sec.  5.  Excessive  bail  shall  not  be  required,  nor  excessive  fines 
imposed,  nor  shall  cruel  or  unusual  punishment  be  inflicted,  nor 
shall  witnesses  be  unreasonably  detained. 

The  death  penalty,  as  a  punishment  for  crime,  is  hereby  abolished 
and  any  person  convicted  of  murder  in  its  first  degree  shall  be  pun- 
ished by  imprisonment  during  his  or  her  natural  life  in  a  state 
prison  at  hard  labor.  But  such  person  shall  have  the  right  to  apply 
at  any  time  during  his  term  of  imprisonment  for  a  new  trial  on 
newly-discovered  evidence  to  the  judge  who  presided  at  the  trial  of 
the  person  so  convicted,  or  to  the  successor  of  said  judge,  or  to  any 


August  8.]  CONSTITUTIONAL  CONVENTION.  149 

court  in  the  county  in  which  said  conviction  was  had  having  juris- 
diction to  try  a  like  offense. 

Mr.  Blake  —  Mr.  President,  I  will  ask  the  attention  of  the 
gentlemen  of  the  Convention  briefly,  and  I  will  endeavor  not  to 
weary  them  with  too  long  a  speech;  and,  preliminarily,  I  desire  to 
ask  them  to  consider  this  pending  amendment  carefully,  and, 
especially,  in  the  light  of  the  fact  that  there  is  pending  before  a 
committee  of  this  body  another  amendment,  which  is  No.  204 
(introductory  No.  202),  and  which  I  had  the  honor  to  introduce  in 
connection  with  the  amendment  now  pending.  That  is  still  before 
the  committee.  I  appeared  before  that  committee,  of  which 
Mr.  McMillan  is  chairman,  and  requested  the  committee  to  post- 
pone consideration  upon  that  amendment  until  the  pending  amend- 
ment might  be  disposed  of.  The  committee  has  kindly  consented 
to  do  that. 

That  provides  that  in  cases  of  conviction  of  murder  in  the  first 
degree,  the  pardoning  power  shall  be  also  abolished.  If  the  amend- 
ment now  pending,  Mr.  President,  shall  be  favorably  decided  by  this 
Convention,  which  is  my  hope  and  trust,  of  course,  I  will  press  that 
amendment,  to  which  I  have  alluded,  before  this  Convention  for 
adoption. 

I  cannot  believe,  sir,  that  this  Convention  has  yet  passed  judg- 
ment upon  the  principle  of  this  amendment.  It  is  true  that  this 
question  was  up  a  week  or  two  ago,  upon  the  amendment  of 
Mr.  Tucker,  and  the  Convention  agreed  with  the  adverse  report 
of  the  committee.  I  have  reason  to  believe  that  very  many  gentle- 
men who  voted  to  concur  in  the  committee's  report,  did  so,  not 
because  they  were  in  favor  of  capital  punishment,  but,  I  believe, 
largely  because  they  did  not  agree  with  the  form  and  some  of  the 
features  of  that  amendment.  I  trust  the  pending  amendment  will 
be  found  less  objectionable  in  that  respect;  and,  if  there  be  any 
objection  —  if,  indeed,  this  Convention  is  in  favor  of  the  principle  — 
the  Convention  will  find  no  difficulty,  I  apprehend,  in  making  the 
amendment  to  conform  to  its  views. 

I  ought  to  say,  also,  sir,  that  this  is  not  a  unanimous  report,  and 
I  have  the  authority  of  the  committee  and  of  the  chairman  to  say 
to  this  Convention  that,  of  the  nine  gentlemen  who  were  present 
when  this  report  was  agreed  to,  five  of  the  nine  were  opposed  to 
capital  punishment.  I  trust  the  same  proportion  against  it  may  be 
found  in  this  Convention. 

Now,  Mr.  President,  I  am  well  aware  that  when  an  institution  or 
a  law  or  a  custom  comes  down  to  us  through  many  centuries,  and 
during  all  that  time  has  received  the  sanction  and  support  of  civil- 


150  REVISED  RECORD.  [Wednesday, 

ized  society,  that  it  ultimately  comes  to  be  regarded  by  the  majority 
of  mankind  with  profound  reverence.  Like  the  giant  oak  of  the 
forest,  it  seems  to  take  deeper  root  with  the  passing  years;  and  so, 
too,  as  the  vine  and  the  ivy,  according  to  the  laws  of  nature,  will 
twine  about  and  cling  with  the  tenacity  of  their  kind  to  their 
powerful  protector,  so  will  the  prejudices  and  even  affections  of 
mankind  cling  to  the  institution  or  the  law  that  comes  down  through 
the  centuries,  venerable  and  hoary  with  age.  There  is  a  natural 
indisposition  on  the  part  of  mankind  to  disturb  or  discard  this  heir- 
loom of  the  past.  With  most  men,  to  attempt  to  do  so  is  little 
less  than  sacrilege.  They  will  tell  you  that  it  is  the  product  of  the 
wisdom  of  parliaments,  of  jurists,  of  philosophers  and  statesmen; 
and  so  it  comes  to  be  regarded  as  a  sacred  legacy.  We  almost  for- 
get, sir,  so  anxious  are  we  to  cling  to  this  relic  of  the  past,  that 
the  author  of  this  law,  whether  parliament  or  jurist,  whether  states- 
man or  sage,  dealt  with  society  as  he  found  it;  that  what  would 
be  good  for  one  age  would  not  necessarily  best  serve  another; 
that  what  is  needful  to  one  citizen  might  be  injurious  and  even 
repugnant  to  another.  Plato  was  wise  in  his  generation,  doubtless, 
and  Solon  not  less  so  in  his  time;  but  it  would  be  supremely  absurd 
to  say  that  the  same  rigor  of  law  and  the  same  severity  of  punish- 
ment that  were  required  in  a  barbarous  age,  or  a  semi-civilization, 
is  to  be  justified  in  an  age  of  the  highest  civilization  and  refinement. 
In  our  progress  upward  to  higher  planes  during  the  last  century, 
the  human  race,  in  spite  of  prejudice  for  ancient  laws  and  custom, 
has  given  strong  evidence  of  its  appreciation  of  this  truth.  It  was 
not  so  many  years  ago  when  burglary  and  arson,  and  larceny,  and 
many  other  crimes  were  visited  with  the  penalty  of  death. 

The  world  has  advanced,  gentlemen  of  the  Convention,  and  is  it 
the  worse  for  having  abolished  capital  punishment  in  these  cases? 
Who  is  the  gentleman  here  to-day  who  would  reimpose  that  punish- 
ment for  such  offenses?  It  may  have  been  necessary  in  one  stage 
of  the  world's  history,  or,  at  least,  deemed  so  to  be,  but  we  all 
agree  that  it  is  not  necessary  in  our  day,  and  the  imposition  of  that 
punishment  in  our  time  would,  I  think,  shock  the  conscience  of 
mankind. 

All  of  you,  gentlemen,  will  recall,  in  your  reading  of  medieval 
history,  what  is  known  as  the  "  truce  of  God."  The  duel  was  the 
common  remedy  for  every  wrong  or  grievance,  whether  real  or 
imaginary;  that  common  crime  against  the  laws  of  God  and  human- 
ity whereby  so  much  innocent  blood  dyed  the  fields  of  honor 
because  of  its  universality,  if  I  may  so  speak,  could  not  be  at  once 
abolished,  because,  by  the  majority  of  mankind,  it  was  regarded 


August  8.]  CONSTITUTIONAL  CONVENTION.  151 

as  the  supreme  test  of  guilt  or  innocence.  There  was  no  law  and 
there  was  no  human  power  that  could  at  once  abolish  it.  Little 
could  be  done  with  the  war  lords  and  the  powerful  barons  and 
knights  of  old  and  gentlemen,  so-called,  but  religion  stepped  in 
and  by  its  beneficence  and  restraining  influence  succeeded  in  obtain- 
ing sanction  to  the  proposition  that  upon  certain  days  in  each  week 
duels  should  be  refrained  from. 

And  so  by  degrees  it  was  sought  to  abolish  this  great  evil,  until 
finally,  by  the  combined  influence  of  religion  and  education  and 
civilization,  dueling  was  abolished  and  held  in  almost  universal 
reprobation.  And  to-day,  in  almost  every  civilized  land,  it  is  made 
a  crime  against  civilization  and  human  laws  and  visited  with  severe 
penalties. 

Sir,  we  have  advanced  to  a  higher  plane.  Our  race  has  cast 
off  the  swaddling  clothes  of  centuries,  and,  despite  the  faint-hearted- 
ness  of  some  and  the  prejudice  of  others  against  this  change  and 
wholesome  reform,  our  race  is  grandly  and  bravely  climbing  up 
the  mount  of  hope  and  promise,  and  each  century  and  each  year 
it  is  coming  nearer  and  nearer  to  the  summit  whereon  eternal  light 
and  truth  and  righteousness  reign  and  abide.  There  are  those  who 
will  not  try  to  attain  the  desired  good.  It  must  be  dropped  into 
their  laps;  there  are  some  others,  like  the  man  riding  backward 
in  the  train,  who  never  sees  anything  until  it  is  past.  There  are 
others  still  who,  like  the  finger  sign-board,  always  point  the  way, 
but  never  make  the  journey  themselves.  I  prefer  the  pioneer,  the 
reformer,  who,  for  the  betterment  of  his  kind,  not  only  points  the 
way,  but  himself  advances  in  the  van  of  progress.  It  is  not, 
Mr.  President,  the  man,  who,  like  the  hooting  owl  that  haunts 
the  dismantled  and  untenanted  castle,  gropes  around  amidst  the 
ancient  ruins  of  past  civilization,  fondles  to  his  breast  the  relics  of 
by-gone  days,  and  pleads  to  be  left  alone  with  his  idols ;  it  is  not  he 
who  lifts  up  his  race  and  brings  blessings  upon  his  kind.  It  is 
the  man  with  stout  heart  and  soul  to  dare,  with  noble  and  lofty 
thought,  who  advances  in  the  van,  or,  at  least,  stands  in  the  very 
front  rank  of  human  progress.  We  have  advanced  during  the  last 
century.  We  have  penetrated  the  unknown  and  explored  and  con- 
quered new  worlds  in  every  art  and  science.  We  have  accom- 
plished marvelous  achievements  in  this,  the  nineteenth  century. 
But,  let  me  call  your  attention  to  this  fact,  that  up  to  the  very 
moment  of  success,  in  almost  every  instance,  the  majority  of  man- 
kind were  ready  to  exclaim:  "  Impossible;  it  cannot  be  done;  it  will 
not  succeed."  Why,  sir,  a  learned  Englishman  once  wrote  a 
treatise  to  prove  that  the  steamship  could  never  cross  the  ocean; 


I52  REVISED  RECORD.  [Wednesday, 

and  by  some  species  of  irony,  I  will  call  it  the  irony  of  fate,  that 
pamphlet  was  brought  over  to  New  York  city  in  the  first  steam- 
ship that  crossed  the  Atlantic. 

Ben  Butler  was  eloquently  urging  before  a  congressional  com- 
mittee that  it  was  impossible  to  capture  Fort  Fisher  by  sea;  and 
whilst  he  was  yet  eloquently  pleading,  the  chairman  read  a  tele- 
gram announcing  its  capture. 

Millions  of  people  there  were  who  believed  that  slave  labor  was 
necessary  to  the  South;  that  free  labor  could  not  live  there,  and  lo! 
the  shackles  fall  from  the  limbs  of  the  slave,  and  he  stands  forth 
in  the  sunlight  of  freedom,  taking  on  a  new  life,  a  very  giant  in 
his  new-found  strength.  The  laws  of  Draco,  because  of  their 
severity,  were  said  to  have  been  written  in  blood;  but,  sir,  in  this 
golden  age  in  which  it  is  our  proud  privilege  to  live,  when  religion 
and  education  and  civilization  hold  almost  universal  sway  over  the 
hearts  and  minds  of  men,  it  were  far  better  that  our  laws  were  writ- 
ten in  the  milk  of  human  kindness  and  justice  and  God-like  mercy. 
Every  honest  and  just  reform  for  which  good  men  strive  and  pray 
will  come  some  time.  They  will  come  in  God's  good  time.  He 
knows  the  day  and  the  hour.  Ignorance  and  prejudice  and  the 
fear  of  change  may  retard  their  coming;  they  may  postpone  the 
welcome  day;  but,  sir,  they  will  come.  Just  so  sure  as  the  night 
follows  the  day;  so  sure  as  justice  and  truth  and  right  shall  endure, 
they  will  come.  You  cannot,  sir,  keep  truth  forever  down;  you 
cannot  always  defeat  the  right,  because  it  is  in  the  hands  of  a  higher 
power;  and,  if  not  to-day,  if  not  now,  it  will  triumph  some  day; 
for  so  has  it  been  in  our  march  down  through  the  ages. 

"  Truth  crushed  to  earth,  will  rise  again, 

For  the  eternal  years  of  God  are  hers; 
But  Error,  wounded,  writhes  in  pain 
And  dies  amid  her  worshippers." 

I  challenge  any  man  here  or  elsewhere  to  find  any  warrant  for 
the  imposition  of  the  death  penalty  by  society.  You  cannot  find  it 
in  the  Divine  law,  nor  in  the  natural  law,  nor  in  the  moral  law. 
You  cannot  justify  it  by  the  law  of  justice,  or  by  the  law  of  necessity; 
and,  if  it  cannot  be  found  justified  or  excused  in  these  authorities, 
or  under  these  laws,  then,  sir,  I  hold  that  organized  society  has  no 
right  to  shed  human  blood  or  to  take  human  life. 

Pardon  me,  sir,  there  is  one  law  I  had  almost  forgotten.  There 
is  one  law  that  seems  to  sanction  it.  It  is  the  lex  talionis,  the 
law  of  revenge.  But  what  is  the  law  of  revenge,  and 
where  does  it  take  its  life?  To  what  shall  we  trace 
its  source  and  spring?  I  will  tell  you,  sir,  to  the  brutal  instincts 


August  8.]  CONSTITUTIONAL  CONVENTION.  153 

and  passions  of  men,  to  the  depraved  and  wicked  impulses 
of  the  human  heart,  which  is  the  well  of  hatred,  and  malice  and 
vindictiveness,  alas!  sir,  the  home  of  all  uncharitableness.  The  law 
of  revenge  is  the  law  of  devils,  the  supreme  law  of  hell,  from  which 
there  is  no  appeal.  It  first  stirred  in  the  breast  of  Lucifer.  It  took 
on  life  in  the  heart  of  Satan,  at  the  moment  of  his  overthrow  and 
banishment  from  Heaven,  and  since  then  this  has  remained  his  sole 
and  inexorable  law  and  that  of  his  deluded  followers.  As  it  was 
devilish  in  its  origin,  so  will  it  be  devilish  throughout  all  the  ages 
of  eternity.  I  know,  sir,  it  is  the  fashion  of  people  who  distrust 
everything  new,  who  turn  their  faces  to  the  past  and  never  to  the 
future,  to  justify  this  inhuman  practice  by  the  misconstruction  and 
distortion  of  holy  writ.  It  was  Madame  Roland,  who,  on  the  way 
to  the  guillotine,  exclaimed:  "  Oh,  Liberty,  what  crimes  are  com- 
mitted in  thy  name !  "  What  crimes,  sir,  are  committed  in  the 
name  of  the  Scriptures  that  we  all  reverence  and  love!  Can  you 
find  any  warrant  for  it  in  the  Scriptures?  I  know  that  the  apostles 
of  this  doctrine  base  their  arguments  upon  the  passage:  "Whoso 
sheds  man's  blood,  by  man  his  blood  shall  be  shed,"  and  "  An  eye 
for  an  eye  and  a  tooth  for  a  tooth."  Are  these  passages  to  be 
interpreted  literally?  Why,  it  would  be  monstrous.  There  are 
times  when  man  is  justified  in  shedding  his  brother's  blood  —  justi- 
fied before  God  and  man.  He  may  do  so  in  a  just  war;  he  may  do 
so  in  self-defense.  Is  the  murderer  always  detected?  Does  he  not 
sometimes  escape  unwhipped  of  justice?  What  then  becomes  of 
your  literal  translation  of  this  passage,  "  Whoso  sheds  man's  blood, 
by  man  his  blood  shall  be  shed?  "  and  of  the  myriads  of  cases  in 
which  a  man  sheds  his  brother's  blood  in  anger,  when  provoked, 
in  passions,  where  there  is  strong  mitigation",  and  juries  even  are 
compelled  to  convict  of  manslaughter  in  one  of  its  degrees,  or 
acquit.  What  then  becomes  of  that  literal  translation?  Why,  sir, 
is  not  this  passage  a  command  to  peace  and  good-will,  an  admoni- 
tion to  shun  quarrels,  not  unnecessarily  to  take  human  life,  lest, 
perhaps,  that  we  ourselves  in  turn  should  be  placed  in  jeopardy, 
and  another  do  like  unto  us?  Is  it  not  like  that  injunction  of  the 
Saviour  on  the  night  of  the  great  agony,  when  he  said  to  Saint 
Peter,  who  had  cut  off  the  ear  of  the  servant  of  the  high  priest: 
"  Put  up  thy  sword  into  its  scabbard,  for  they  who  take  the  sword 
shall  perish  by  the  sword."  Is  that  to  be  interpreted  literally? 
Do  all  who  take  the  sword  perish  by  the  sword?  No,  sir;  but  it 
was  a  salutary  inculcation  of  the  lesson  that  we  must  avoid  unneces- 
sary violence,  needless  violence,  lest  in  turn  we  may  perish  by 
violence.  "  An  eye  for  an  eye  and  a  tooth  for  a  tooth."  Do  we 


154  REVISED  RECORD.  [Wednesday, 

then  take  "  an  eye  for  an  eye  and  a  tooth  for  a  tooth?  "  Why,  sir, 
it  was  a  figure  of  speech.  A  good  and  merciful  God  could  not 
give  to  His  creatures  a  law  so  inhuman  and  so  cruel  and-yet  remain 
God,  with  all  His  divine  perfections,  His  attributes  of  mercy  and 
goodness  and  wisdom.  It  is  not  commanded  by  the  Mosaic  law 
nor  by  the  evangel  of  Christ.  Both  the  one  and  the  other  teach  the 
law  of  mercy  and  forgiveness  and  love.  These  passages  have  been 
much  abused,  and  I  can  say,  sir,  in  the  language  of  Shakespeare, 
that  "  the  devil  does  not  quote  Scripture,"  and  I  say  it,  with  all 
respect  to  the  gentlemen  who  may  differ  from  me.  But  the  devil 
does  sometimes  quote  Scripture  for  his  purpose. 

Cain  slew  his  brother,  Abel.  Did  the  Lord  command  that-  Cain 
should  be  put  to  death?  Yet  the  murder  was  most  unprovoked  and* 
inexcusable.  Abel  was  just,  before  the  Lord.  The  murder  was 
the  outcome  of  consuming  jealousy.  But  did  the  Lord  command 
that  he  should  be  put  to  death?  Did  He  not  send  him  forth  with 
the  brand  of  murder  upon  his  brow,  and  when  Cain  protested  that 
men  might  kill  him,  did  not  the  Lord  say:  "Nay,  but  whosoever 
kills  thee  shall  be  punished  seven-fold? "  Sir,  the  Scripture  is 
against  this  crime  by  society.  The  Scripture  is  against  what 
remains  to  this  day,  amongst  civilized  people,  the  last  remaining 
relic  of  barbarism.  Why  is  not  the  adultress  put  to  death  to-day  as 
of  old?  Why  is  she  not  stoned  to  death  as  of  old?  Was  it  not 
the  Master  who  said :  "  Let  him  who  is  without  sin  cast  the  first 
stone.  Go  in  peace  and  sin  no  more?"  Were  not  thieves  executed 
in  olden  time?  Why  not  now?  Two  of  them  were  executed  with 
Christ.  It  is  true  that  He  did  not  condemn  the  practice,  but  that 
does  not  help  the  apostles  of  this  doctrine,  because,  if  it  amounts 
to  anything  at  all,  then  they  should  insist  upon  the  execution  of 
thieves.  But  why  did  he  not  condemn  it?  Because,  sir,  it  was  not 
His  mission  upon  the  earth  to  frame  a  code  of  laws  and  to  regulate 
the  affairs  of  civil  government.  But,  why,  in  the  face  of  the  olden 
practice,  are  not  thieves  put  to  death  to-day?  I  will  tell  you  why. 
Because  the  world  has  condemned  and  abolished  it.  The  world 
has  advanced,  and  it  is  speeding  to-day  as  never  before.  Now,  the 
advocates  of  capital  punishment,  Mr.  President,  when  hard  pressed, 
run  to  their  last  fortress,  and  there  they  make  a  desperate  stand, 
and  this  is  their  argument  —  they  say  it  is  necessary  to  the  protec- 
tion of  society,  and  upon  that  ground  they  stand.  They  admit,  then, 
that  the  Lord  who  gave  life,  with  that  simple  qualification  and 
exception,  has  the  sole  and  supreme  power  to  take  away  life,  and 
that  when  you  advance  beyond  the  pale  of  self-defense,  which  is  the 
first  law  of  nature,  neither  society  nor  the  individual  has  the  right 


August  8.]  CONSTITUTIONAL  CONVENTION.  155 

to  take  human  life.  Well,  sir,  I  concede  that  society  has  the  right 
to  enact  laws  for  its  maintenance  and  its  perpetuity,  the  right  to 
make  laws  for  the  preservation  of  its  law  and  order,  and  also  for 
the  proper  punishment  of  crime,  for  the  establishment  of  penal 
institutions,  always  in  the  line  of  self-defense,  so  that  those  who 
transgress  its  laws  may  be  incarcerated  for  a  time  and  be  for  a 
time  removed  from  its  midst.  But,  tell  me  what  is  the  theory  of 
society,  in  respect  to  murder  in  the  first  degree?  Why,  that  the 
man  who  commits  it  is  a  menace  to  society;  that  he  is  a  man  of 
depraved  and  wicked  heart;  that,  if  in  cold-blooded  malice  he  could 
take  one  human  life,  he  may  take  another,  and  still  another,  and  so, 
for  its  own  peace  and  security,  it  is  necessary  to  remove  him  from 
its  midst.  But  how,  Mr.  President?  By  killing  him?  Yes,  if  it 
be  necessary  to  the  protection  of  society.  But,  if  not  necessary  to 
that  end,  no,  no,  a  thousand  times  no,  sir!  You  have  no  right  to 
sacrifice  human  life,  unless  it  be  necessary.  And  let  me  ask  you 
if  the  man  convicted  of  murder  of  the  first  degree  be  imprisoned 
at  hard  labor,  under  such  conditions  and  circumstances  of  punish- 
ment as  the  law  prescribes,  what  fear  has  society  to  apprehend?  Is 
society  not  effectually  and  absolutely  freed  from  all  danger  of  his 
presence,  and,  particularly,  if  the  pardoning  power  be  removed? 
Let  me  ask  you,  gentlemen  of  the  Convention,  what  apprehension 
have  you  now  that  the  man  convicted  of  murder  in  the  second 
degree,  who  is  sentenced  to  imprisonment  for  life  at  hard  labor, 
will  return  to  your  midst,  unless  by  the  grace  of  a  pardon?  But, 
by  the  amendment  which  I  have  alluded  to,  the  door  to  the  pardon- 
ing power  is  forever  closed  to  the  man  convicted  of  murder  in  the 
first  degree.  The  man  convicted  of  murder  in  the  second  degree 
may  still,  as  now,  appeal  to  executive  clemency,  and  he  may  still 
cherish  the  hope,  slender  though  it  be,  that  some  day  he  may  be 
permitted  to  mingle  with  his  kind.  But  not  so  the  man  convicted 
of  the  higher  offense.  It  may  well  be  said,  in  the  language  of 
the  damned  spirits  whom  Dante  describes:  "Abandon  hope,  all  ye 
who  enter  here." 

Now,  they  talk  of  the  punishment  of  death.  I  confess,  sir,  that 
life  and  liberty  are  sweet.  Death  is  bitter  to  all  men,  howsoever  it 
may  come.  But  why?  Because  they  know  not  what  lies  beyond. 
With  the  murderer  the  dread  is  not  so  much  that  it  is  death  that 
faces  him,  but  that  it  shuts  out  all  hope  of  pardon,  as  the  laws  are 
now.  And,  of  course,  it  is  natural  for  men  to  strive  to  obtain  some 
better  fate,  because  whilst  there  is  life  there  is  hope.  But  cut  off 
the  pardoning  power;  cut  that  off,  and  imprison  him  at  hard  labor, 
and  let  me  ask  you,  will  he  not  fear  that  sentence  as  much  as  he 


156  REVISED  RECORD.  [Wednesday, 

nows  fears  death  and  more,  and  will  he  not  strive  as  hard  to  escape 
that  awful  fate? 

Now,  sir,  does  capital  punishment  act  as  a  deterring  force  and 
influence?  Yes,  say  its  advocates.  They  are  grievously  mistaken, 
sir.  There  is  no  land  under  heaven's  blue  skies  where  murder  is 
so  common  and  so  rife  as  in  those  lands  where  human  life  pays 
the  penalty.  Facts  are  stubborn  things,  gentlemen,  and  they  prove 
this  beyond  all  cavil.  In  the  State  of  New  York,  from  1889  to 
1894,  there  were  found  174  indictments  for  murder  in  the  first 
degree,  and  eighteen  for  murder  in  the  second  degree.  Of  that 
number,  thirty-two  were  convicted  of  murder  in  the  first  degree, 
thirty-five  of  murder  in  the  second  degree  and  four  plead  guilty  to 
murder  in  the  second  degree;  making,  I  think,  ninety-one  convic- 
tions, according  to  the  verdicts  of  juries,  of  intentional  murder. 
And  how  many  of  those  who  escaped  judgment  owed  it  to  the 
merciful  consideration  of  juries?  That  is  the  record  of  six  or  seven 
millions  of  people. 

Think  you,  sirs,  that  capital  punishment  operates  as  a  deterrent 
force  and  influence?  Why,  who  does  not  know  that  the  man  who 
commits  murder  for  the  most  part  commits  that  act  when  the 
demon  passion  storms  in  his  breast  and  dominates  his  will,  and  he 
cares  little  or  nothing  for  the  personal  consequences  of  his  act;  or 
else  he  murders  in  secret,  or  assassinates  in  secret,  exercising  all 
his  ingenuity  and  cunning  to  cover  up  the  crime,  in  the  hope  of 
escaping  punishment  altogether.  Why,  sir,  does  the  mind  advert 
for  a  single  instant  in  such  a  case  to  the  penalty,  when  the  mur- 
derous blow  is  struck?  And  how  is  it  in  other  lands  and  States, 
more  happy  than  ours?  In  the  little  State  of  Rhode  Island  it  is 
almost  fifty  years  since  a  man  has  been  hanged  or  sentenced  to 
death,  and,  yet,  if  you  ask  any  resident  of  that  State,  he  will  tell 
you  that  life  and  property  are  safe  there  —  aye,  far  safer  than  in  the 
State  of  New  York.  In  the  State  of  Maine  capital  punishment 
has  been  abolished  since  about  1876,  and  life  and  property  are  safe 
in  Maine.  In  Michigan,  for  nearly  fifty  years,  it  is  the  same  story; 
and  I  will  address  this  question  to  the  judgment  and  conscience  of 
every  man  in  this  Convention ;  if  the  abolition  of  capital  punishment 
had  not  proven  a  source  of  blessing  to  the  people  of  those  States, 
would  not  the  people  of  those  States  at  once,  as  soon  as  might  be 
and  without  any  unnecessary  delay,  have  remedied  the  evil  and 
placed  the  death  penalty  upon  their  statute  books?  I  know  the 
answer  is  in  your  hearts  and  minds,  for  there  can  be  but  one  answer 
to  that  question. 

Across  the  broad  Atlantic  there  is  a  little  land  whose  people  are 


August  8.]  CONSTITUTIONAL  CONVENTION.  157 

industrious  and  thrifty  and  peaceful.  They  are  busy  with  the  arts 
and  the  trades  that  bring  to  them  comfort  and  abundance  and 
prosperity.  Belgium,  a  nation  of  about  5,000,000  of  people,  more 
wise  and  happy  than  we,  has  abolished  capital  punishment,  and 
murder  is  scarcely  heard  of  in  that  land.  Why,  sir,  in  no  land 
under  heaven's  blue  sky  is  life  held  so  cheap  as  in  these  United 
States.  In  no  land  throughout  the  civilized  world  are  there  so 
many  executions  as  in  this  land,  the  home  of  the  brave  and  the 
free,  the  home  of  civilization  and  enlightenment.  What  does  that 
prove?  It  proves  that  the  death  penalty  never  did  and  never  will 
prevent  a  single  murder.  If  there  be  any  influence  at  all,  it  exists 
not  in  the  severity  of  the  punishment,  but  in  its  certainty.  Another 
has  said:  "All  through  the  civilized  world  we  are  called  the  hang- 
ing nation."  In  that  particular  we  have  no  competitors  among  the 
nations  of  the  earth.  To  that  bad  distinction  that  dishonors  us  and 
is  a  blot  upon  our  civilization,  there  are  no  aspirants  among  the 
nations  of  the  earth.  And,  sir,  if  capital  punishment  does  not 
operate  as  a  preventive  of  crime,  then  the  strongest  argument  of  its 
apostles  falls  hopelessly  shattered  to  the  ground.  They  tell  you 
that  death  is  a  punishment.  No,  sir,  I  will  tell  you  what  is  a  punish- 
ment. I  would  not  at  once  end  the  suffering  and  punishment  of  a 
man  who  has  wilfully  and  deliberately  taken  human  life.  I  would 
continue  them  on,  and  on,  and  on,  until  his  Maker,  who  breathed 
into  him  the  immortal  spark  of  life,  should  call  him  hence  to  judg- 
ment. I  would  make  him  feel  every  moment  of  his  life  that  when 
he  rises  in  the  morning  from  a  felon's  cot  that  it  is  to  face  a  hard 
day's  toil,  without  the  hope  of  compensation  or  reward,  to  labor  on 
and  on  unceasingly,  without  respite  or  vacation  from  his  weary 
round  of  servitude,  never  more  to  partake  of  the  joys  and  pleasures 
of  society,  and  never  more  to  look  into  heaven's  blue  sky  or  tread 
the  green  fields  of  earth,  or  taste  the  sweets  of  liberty,  dearer  than 
even  life  itself.  I  would  make  him  know  that  his  life  is  worse 
than  that  of  a  slave;  that  he  is  dead  and  buried  to  the  world  and  to 
his  friends,  his  kindred  and  his  kind.  That,  sir,  is  punishment; 
punishment  allowable  by  the  laws  of  God  and  justice.  And,  if,  sir, 
he  has  committed  wilful  and  deliberate  murder,  would  you  not 
give  him  time  for  remorse?  Would  you  not  give  him  a  lifetime? 
Is  a  lifetime  too  long  to  atone  for  this  crime?  Would  you  cut  off 
the  days  that  God  Almighty  gave  him  in  which  to  atone  for  his 
sins  and  to  do  works  meet  for  repentance?  Upon  what  principle 
is  it  that  a  court  of  justice  merely  gives  him  thirty  or  forty  days  in 
which  to  prepare  to  meet  his  Maker.  What  a  farce,  what  a  mock- 
ery. If  thirty  or  forty  days,  why  not  a  lifetime? 


158  REVISED  RECORD.  [Wednesday, 

And,  then,  gentlemen,  remember  how  many  innocent  men  suffer 
this  disgraceful  death.  Every  lawyer  in  this  body  knows  that  the 
books  are  full  of  such  cases.  And,  if  a  man  be  guilty  of  a  lesser 
degree  of  crime,  in  truth  and  in  the  sight  of  God,  and  the  jury 
convict  him  of  murder  in  the  first  degree,  and  he  suffer  this 
infamous  death,  what  shall  society  do?  How  will  you  repair  the 
wrong?  You  cannot  repair  it.  You  have  committed  a  great 
crime  which  cannot  be  repaired  in  this  world  or  the  next;  I  say  not 
in  the  next,  for  infinite  power,  even,  paradoxical  as  it  may  seem, 
is  powerless  to  blot  out  a  wrong  when  once  consummated.  I  do 
not  mean  to  say  that  Almighty  God  may  not  restore  to  life;  do  not 
misunderstand  me.  I  say  that  wrong,  that  particular  wrong  once 
done,  once  consummated,  even  Almighty  God  may  not  blot  out; 
and,  sir,  one  drop  of  innocent  blood  is  of  more  worth  than  all  the 
.unnecessary  hangings  that  have  ever  disgraced  the  pages  of  our 
criminal  annals.  If  a  man  be  imprisoned  and  a  terrible  mistake 
has  been  made,  if  the  spirit  yet  abides  with  the  flesh  and  the  heart 
beats  warm  with  life,  there  is  yet  time  for  justice.  The  wrong  may 
be,  in  part,  repaired.  His  innocence  may  be  vindicated  before  the 
world. 

Ah,  gentlemen,  if  in  considering  this  question,  you  could  but 
shut  your  eyes  to  the  past  to  which,  unhappily,  so  many  of  us  are 
chained  and  bound;  if  you  could  blot  from  the  tablets  of  your 
memory  the  fact  that  this  law  is  an  institution  grown  venerable 
through  centuries,  and,  like  all  such  institutions  that  come  down 
through  the  centuries,  receiving  the  sanction  of  generations,  almost 
compels  our  reverence;  if  you  could  dismiss  from  your  minds  the 
fear  of  change,  the  most  formidable  obstacle  to  human  progress 
and  to  every  honest  reform;  if  you  could  shake  off  the  prejudices 
that  have  accompanied  you  from  your  youth  up,  and  that  now  beset 
you  on  every  side,  and  look  up  to  that  loftier  plane  whither  our  race 
is  fast  tending  —  and  some  of  you  gentlemen  here  to-day,  more 
happy  than  your  fellows,  will  yet  live  to  see  it  —  could  you  but  do 
that,  you  would  perform  an  act  pleasing  in  the  sight  of  God  and 
just  men.  I  appeal  to  you,  gentlemen  of  culture  and  refinement 
and  education,  you  lovers  of  religion,  you  men  of  sturdy  purpose 
and  courage,  who,  deep  down  in  your  hearts,  each  and  every  one 
of  you,  I  know  strongly  loves  right  and  truth,  and  hates  evil;  you 
who  are  the  mighty  ambassadors  to-day  of  those  great  people  and 
are  fair  samples  and  representatives  of  the  moral  worth  and  princi- 
ples of  the  highest  and  best  civilization  of  this  age  of  splendid 
achievement;  I  appeal  to  you,  men  of  New  York.  Rise  to  the  full 
stature  of  your  manhood.  Lift  yourselves  far  above  the  atmosphere 


August  8.]  CONSTITUTIONAL  CONVENTION.  159 

of  prejudice  that  surrounds  you  to-day.  I  beseech  you  to  stand  on 
the  side  of  civilization  and  human  progress,  which,  if  you  shall 
wisely  do,  humanity  will  bless  you,  and  generations  yet  to  be  will 
rise  and  heap  benedictions  upon  your  memory. 

I  thank  you,   gentlemen,   for  your  attention.     (Applause.) 

Mr.  Hotchkiss  —  Mr.  President,  while  I  am  individually  heartily 
in  accord  with  the  abolishment  of  the  death  sentence  and  the  sub- 
stitution of  something  similar  to  that  suggested  by  my  colleague 
from  New  York  (Mr.  Blake),  I  do  not  think  the  time  has  come 
when  the  people  of  the  State  of  New  York  wish  this  penalty  to  be 
changed.  I  am,  therefore,  in  favor  of  sustaining  the  action  of  the 
committee  in  its  adverse  report;  but  I  believe  that  there  should  be 
a  record  made  here  to-day  of  the  sentiment  of  this  Convention, 
and,  possibly,  for  the  encouragement  in  the  future  of  those  who 
may  wish  to  see  this  penalty  abolished,  of  the  opinions  of  the  mem- 
bers of  this  Convention  upon  this  subject.  I,  therefore,  ask  that 
the  roll  be  called  upon  sustaining  the  vote  of  the  committee. 

The  President  put  the  question  upon  calling  the  ayes  and  noes, 
and  the  ayes  and  noes  were  ordered. 

The  Secretary  proceeded  to  call  the  roll. 

Mr.  Becker  —  I  ask  to  be  excused  from  voting,  and  will  briefly 
state  my  reasons.  I  have  for  many  years  felt  that  so  long  as  human 
nature  was  weak  as  it  is,  the  right  to  take  away  human  life  by 
judicial  process  was  one  that  should  not  be  permitted  to  exist  in  a 
civilized  community.  After  the  life  has  been  taken,  a  wrong  that 
is  committed  may  never  be  righted.  While  I  believe  this,  I  agree 
with  my  friend,  Mr.  Hotchkiss,  that,  probably,  the  sentiment  of 
the  people  of  this  State  has  not  yet  been  cultivated  to  such  an  extent 
in  right  thinking  upon  this  question,  that  so  radical  a  change  in 
our  methods  of  punishment,  as  is  now  proposed,  could  be  adopted. 
At  the  same  time  I  disagree  with  him  as  to  the  conclusion  which 
he  draws  from  that  reasoning.  It  seems  to  me  that  this  is  pecu- 
liarly one  of  those  questions  that  should  be  submitted  to  the  people 
for  their  judgment;  for  the  right  to  take  human  life  rests,  in  its 
ultimate  foundation,  upon  the  doctrine  of  self-defense,  the  defense 
which  society  offers  for  its  own  protection.  While  on  some  other 
questions  which  are  before  this  Convention,  where  sex  may  be 
arrayed  against  sex,  and  where  the  home  might  be  invaded  and  its 
peace  and  security  broken  up,  I  would  believe  it  to  be  the  ultimate 
duty  of  this  Convention  to  refuse  to  submit  a  question  about  which 
the  majority  of  the  Convention  believed  that  there  was  little  or  no 
doubt  as  to  what  was  the  right  thing  to  do.  This  is  purely  a  matter 


160  REVISED  RECORD.  [Wednesday, 

of  reason.  It  is  one  as  to  which  a  great  many  of  our  fellow-citizens 
in  this  State  cherish  opinions  like  those  stated  here  by  the  gentle- 
man who  made  an  argument  in  opposition  to  the  report  of  this 
committee,  one  of  the  best  and  ablest  arguments,  Mr.  President,  I 
ever  had  the  pleasure  of  listening  to  on  the  subject.  But  I  believe 
that  where  so  many  of  our  fellow-citizens  have  doubts  on  this 
question  that  it  is  the  duty  of  this  Convention  to  submit  it  to  the 
people  for  their  decision.  Let  them  determine  it,  so  long  as  it 
will  not  entail  bickerings  or  disputes  which  prejudice  the  present 
safety  and  security  of  society.  For  these  reasons,  Mr.  President, 
I  withdraw  my  excuse  from  voting,  and  vote  no. 

Mr.  E.  A.  Brown  —  Mr.  President,  I  ask  to  be  excused  from 
voting,  and  will  briefly  state  my  reasons.  It  seems  to  me,  sir,  that 
it  is  eminently  proper,  in  this  advanced  stage  of  society  and  civiliza- 
tion, that  this  amendment  should  be  adopted.  When  we  view  the 
experiences  of  the  countries  of  the  old  world  in  dealing  with  the 
anarchistic  element  there,  for  whom  death  has  no  terror,  for  whom 
conviction  is  what  they  desire  and  execution  their  fondest  hope, 
when  the  shores  of  this  great  land  are  threatened  with  mobs  of  this 
kind  of  anarchistic  people,  I  say  that  solitary  confinement  is  the 
only  punishment  that  will  be  adequate  in  such  cases.  I,  therefore, 
desire  to  withdraw  my  application  to  be  excused  from  voting,  and 
vote  no. 

Mr.  Cassidy  —  Mr.  President,  I  ask  to  be  excused  from  voting, 
and  will  briefly  state  my  reasons.  I  do  not  believe  that  the  Consti- 
tution of  this  State  should  be  turned  into  a  penal  code,  with  penal- 
ties and  fines  imposed,  because  of  the  neglect  or  violation  of  some 
of  its  provisions.  In  the  Constitution,  as  it  already  exists,  we 
have  a  provision  which  is  broad  enough  and  plain  enough  on  this 
subject.  "  Excessive  bail  shall  not  be  required,  nor  excessive  fines 
imposed,  nor  shall  cruel  or  unusual  punishment  be  inflicted."  This 
leaves  the  whole  subject  with  the  Legislature,  and  the  Legislature 
is  supposed  to  walk  hand  in  hand  with  the  development  of  society. 
If  it  becomes  necessary,  as  has  been  said,  to  throw  off  the  swaddling 
clothes  of  the  past,  and  blaze  new  paths  for  the  future,  the  Legisla- 
ture, in  touch  with  the  progress  of  civilization,  may  make  such 
provision  at  any  time.  It  seems  to  me  that  it  would  be  undignified 
in  a  Constitution  to  say  more  than  we  have  already  said  upon  this 
subject.  This  subject  has  been  the  source  of  more  literary  pyro- 
technics proposed  in  debating  schools  than  any  other  subject  which 
will  come  before  us.  More  men  have  gone  careering  among  the 
constellations  and  scattering  star  dust  in  their  trails  in  the  discus- 
sion of  this  subject  than  any  other,  but  I  think  the  provision  of  the 


August  8.]  CONSTITUTIONAL  CONVENTION.  161 

Constitution  is  broad  enough,  humane  enough  and  advanced 
enough.  I,  therefore,  withdraw  my  request  to  be  excused,  and 
vote  in  the  affirmative. 

Mr.  I.  Sam  Johnson  —  Mr.  President,  I  ask  to  be  excused  from 
voting,  and  will  briefly  state  my  reasons.  I  believe  that  there  is  no 
question  where  intelligent  and  honest  research  and  looking  into 
the  history  of  the  various  States,  and  various  countries,  which  have 
adopted  the  one  principle  or  the  other,  will  do  so  much  for  the 
measure  as  in  the  present  case.  I  had  the  pleasure  of  occupying 
a  position  in  this  chamber  in  the  Assembly  in  1890,  when  it  was 
said  that  there  were  only  three  members  who  were  in  favor  of  the 
abolition  of  capital  punishment.  But  under  the  leadership  of  that 
gallant  general  and  able  man,  General  Curtis,  the  matter  was  inves- 
tigated. The  effect  upon  the  various  States  and  various  countries 
was  considered;  it  was  postponed  from  time  to  time  and  members 
of  the  Assembly  were  asked  to  investigate  the  matter  for  them- 
selves, and  the  result  was  that  instead  of  there  being  three  members 
in  the  Assembly,  there  was  a  majority  voting  in  favor  of  the  aboli- 
tion of  capital  punishment.  I  believe  that  if  a  similar  examination 
were  made  here,  if  the  effect  it  has  had  in  different  places  was 
properly  considered,  that  this  body  would  have  no  question  as  to 
which  was  right. 

If  it  be,  Mr.  President,  that  it  is  for  its  example  on  the  public,  if  it 
be  that  it  will  deter  others  from  the  commission  of  crime,  then  we 
ought  not  to  have  adopted  the  rule  which  has  been  adopted  in  this 
State  and  in  many  other  States,  that  the  execution  shall  be  in  private, 
and  not  in  public.  I  think  it  is  true  that,  whenever  in  the  past 
executions  have  been  in  public  they  have  been  followed  by  a  carnival 
of  crime,  and  that  many  other  murders  have  been  committed  which 
would  not  have  been  committed  had  the  execution  not  been  made 
public.  I  do  not  believe,  sir,  that  public  executions  will  deter 
crime.  I  believe  that  when  you  come  to  a  time  when  many  of  these 
Anarchists  cannot  pose,  as  they  now  pose,  as  martyrs,  that  you 
will  take  away  much  of  that  which  induces  them  to  commit  the 
crimes  which  they  have  committed  in  the  past,  and  which  they  will 
continue  to  commit  in  the  future.  I  believe  that  if  it  was  understood 
that  those  men,  when  they  committed  the  crimes,  were  to  be  pun- 
ished by  imprisonment  for  life,  without  the  possibility  of  pardon, 
that  you  will  find  less  Anarchists  in  this  country.  Mr.  President,  I 
withdraw  my  request  to  be  excused  from  voting,  and  vote  no. 

Mr.  Maybee  —  Mr.  President,  I  ask  to  be  excused  from  voting, 
and  will  briefly  state  my  reasons.  When  this  proposition  was  before 


162  REVISED  RECORD.  [Wednesday, 

the  Convention  the  other  day,  I  voted  to  confirm  the  report  of  the 
committee  adversely  because  that  proposition  contained  some 
provisions  to  which  I  could  not  give  my  assent.  But  I  understand 
the  proposition  now  pending  to-day  is  a  clean-cut  proposition  in 
favor  of  the  abolition  of  capital  punishment.  I  do  not  believe 
capital  punishment  to  be  in  conformity  with  the  Christian  and 
humane  spirit  of  this  age.  I  do  not  believe  that  the  age  supposed  to 
be  dominated  by  the  sermon  on  the  mount,  by  the  New  Testament 
law  of  love,  ought  to  retain  a  system  of  judicial  murder.  I,  there- 
fore, withdraw  my  request  to  be  excused  from  voting,  and  vote  no. 

Air.  McClure  —  Mr.  President,  I  ask  to  be  excused  from  voting, 
and  will  state  my  reasons  very  briefly.  I  am  not,  as  I  have 
intimated  here  on  one  or  two  of  the  occasions  when  I  have  taken 
the  liberty  of  addressing  this  Convention,  in  favor  of  doing  anything 
but  passing  positively  upon  every  proposition  submitted  to  this 
Convention.  I  am  not  in  favor  of  submitting  to  the  people  any 
proposition  which  the  judgment,  the  wisdom,  the  experience  and  the 
discretion  of  this  Convention  do  not  positively  and  in  set  terms, 
by  a  liberal  majority  of  its  members,  endorse.  With  reference  to  this 
proposition,  I  am  in  favor  of  the  report  of  the  committee.  The 
very  eloquent  speech  of  the  gentleman  from  New  York  (Mr.  Blake), 
full  of  evidence  of  research,  learning  and  reading,  reminds  me  of  the 
scene  in  the  British  House  of  Commons,  when  one  of  the  two  great 
English  orators  (although  they  were  both  Irish),  I  do  not  remember 
whether  it  was  Burke  or  Sheridan,  but  when,  whichever  one  it  was, 
concluded  his  speech,  an  English  member  suggested  that  perhaps 
the  house  had  better  adjourn,  as  it  might  act  mistakenly  under 
the  influence  of  the  eloquence  of  the  speaker.  But  I  have  had  time 
to  recover  from  the  effects  of  Mr.  Blake's  eloquence.  I  believe 
there  will  be  no  deterrent  to  the  commission  of  murder  in  our 
community  unless  there  is  to  be  swift  retribution,  and  the  taking  of 
the  life  immediately,  promptly  of  the  murderer.  I  believe  that 
that  is  the  only  preventive,  and  it  is  not  much.  I  do  not  think 
that  the  law  ought  to  be  changed.  I  am  prompt  to  say  positively 
that  I  am  not  in  favor  of  submitting  the  question  to  the  people 
because  I,  sent  here  to  represent  them  in  part,  do  not  approve  of  it, 
I  withdraw  my  request  to  be  excused  from  voting,  and  vote  aye. 

Mr.  McDonough  —  Mr.  President,  I  ask  to  be  excused  from 
voting,  and  will  state  my  reasons  briefly.  I  desire  to  say,  Mr. 
President,  that  in  reporting  this  amendment  adversely  the  com- 
mittee do  not  all  favor  capital  punishment.  On  the  contrary,  several 
members  of  the  committee  agree  with  the  gentleman  who  intro- 
duced this  proposition,  but  it  was  thought  by  the  committee  unwise 


August  8.]  CONSTITUTIONAL  CONVENTION.  163 

to  tie  the  Legislature  fo  twenty  years,  possibly.  They  thought  it 
wise  to  leave  this  matter  to  the  Legislature,  and  have  it  considered 
there  where  it  properly  belongs.  The  Legislature  of  the  State  of 
New  York  has  acted  on  a  similar  proposition  before.  Many  years 
ago  capital  punishment  was  abolished  in  this  State.  It  was  to  save 
an  Albany  woman,  and  the  Legislature  ought  to  do  anything  to  save 
an  Albany  woman. 

Mr.  Moore  —  She  needed  it. 

Mr.  McDonough  —  She  needed  it,  otherwise  she  would  have 
gone  to  the  gallows. 

Mr.  McClure  —  As  distinguished  from  the  men. 

Mr.  McDonough  — -  The  Albany  men  are  able  to  save  themselves. 
The  very  next  year,  Mr.  President,  the  law  was  changed  again,  and 
the  capital  penalty  was  re-enacted.  On  account  of  these  changes  it 
was  thought  advisable  and  thought  best  to  leave  this  matter  to  the 
Legislature.  I  withdraw  my  request  to  be  excused  from  voting,  and 
vote  aye. 

Mr.  Moore  —  Mr.  President,  this  is  the  first  time  that  I  have 
deemed  it  necessary  to  ask  to  be  excused  from  voting,  and  to  state 
my  reasons  therefor.  I  feel,  Mr.  President,  that  this  proposed 
amendment  is  in  the  line  of  advanced  thought  and  progressive 
humanity.  I  do  not  believe  that  capital  punishment  has  ever 
bettered  humanity.  It  certainly  has  never  cured  the  crime,  even  if 
it  has  killed  the  criminal.  As  for  speedy  retribution,  I  beg  to  point 
my  friend  from  New  York  (Mr.  McClure)  to  the  records  of  the 
courts,  as  to  any  speedy  retribution  in  these  directions.  It  seems 
to  me,  Mr.  President,  that  the  Legislature  does  not  walk  hand  in 
hand  with  the  advanced  thought  of  the  people  upon  all  subjects,  and, 
at  least,  not  upon  this.  I  find,  Mr.  President,  that  among  the  people 
the  demand  for  more  humane  punishment  indicates  the  trend  of 
public  thought  in  this  direction.  I  find  the  fact  that  the  people  are 
against  public  executions  which  were  formerly  quoted  as  a  neces- 
sary example  to  deter  criminals  from  committing  crimes.  I  find 
the  fact  that  the  people  demand  that  these  executions  shall  be  in 
private,  that  the  people  think  if  there  must  be  capital  punishment, 
that  it  shall  be  as  humane  as  possible.  These  ideas  indicate  the 
trend  of  the  public  mind  upon  these  questions.  I  withdraw  my 
request  to  be  excused  from  voting,  and  vote  no,  on  the  question  of 
this  adverse  report. 

Mr.  Titus  —  Mr.  President,  I  ask  to  be  excused  from  voting,  and 
will  briefly  state  my  reasons.  Several  years  ago  in  this  State  there 
was  a  commission  appointed  for  the  purpose  of  reporting  some  more 


164  REVISED  RECORD.  [Wednesday, 

merciful  means  of  death  than  by  hanging.  They  reported  that  death 
by  electricity  was  more  merciful,  and  after  trying  it  on  several  dogs 
and  horses  they  found  that  it  did  not  work  successfully.  They  then 
added  to  it  the  autopsy  or  post-mortem,  and  the  doctors  to-day 
are  to  hold  that  autopsy  so  as  to  kill  the  victim  if  electricity  has  not 
done  its  work.  These  gentlemen  even  went  further.  They  were 
appointed  for  the  purpose  of  revising  and  recommending  some  more 
merciful  means.  They  even  went  into  the  grave  of  the  victim  and 
said  his  body  must  be  consumed  with  quick-lime.  Gentlemen,  1 
believe  in  imprisonment,  and  life  imprisonment  in  its  full  term. 
Every  murderer  or  thief  should  be  taught  that  it  is  the  privilege  of 
an  honest  man  to  work  and  breathe  the  free  air  of  Heaven.  I  with- 
draw my  request  to  be  excused  from  voting,  and  vote  no. 

The  report  of  the  committee  was  agreed  to  by  the  following  vote : 
Ayes  —  Messrs.  Abbott,  Acker,  Ackerly,  Allaben,  Alvord, 
Arnold,  Baker,  Banks,  Barhite,  Bowers,  Brown,  E.  R.,  Bush, 
Cassidy,  Chipp,  Jr.,  Clark,  G.  W.,  Clark,  H.  A.,  Cochran,  Cookin- 
ham,  Cornwell,  Countryman,  Crosby,  Danforth,  Davenport,  Davis, 
Deterling,  Deyo,  Doty,  Emmet,  Fields,  Floyd,  Foote,  Fraser,  Fuller, 
C.  A.,  Galinger,  Giegerich,  Gilbert,  Hawley,  Hedges,  Hill,  Hirsch- 
berg,  Holls,  Hottenroth,  Jacobs,  Johnson,  J.,  Kellogg,  Lauterbach, 
Lewis,  C.  H.,  Lincoln,  Lyon,  Manley,  Marks,  Marshall,  McClure, 
McCurdy,  McDonough,  Mclntyre,  McKinstry,  McMillan,  Mereness, 
Nichols,  Nicoll,  Nostrand,  O'Brien,  Osborn,  Parkhurst,  Pashley, 
Peck,  Platzek,  Powell,  Pratt,  Putnam,  Redman,  Roche,  Root, 
Rowley,  Sandford,  Steele,  W.  H.,  Sullivan,  T.  A.,  Tekulsky, 
Tibbetts,  Vogt,  Wellington,  Wiggins,  Williams,  President  —  85. 

Noes  —  Messrs.  Barnum,  Barrow,  Becker,  Blake,  Brown,  E.  A., 
Burr,  Campbell,  Carter,  Church,  Coleman,  Crimmins,  Davies, 
Dean,  Dickey,  Durfee,  Durnin,  Faber,  Farrell,  Forbes  Fuller, 

0.  A.,  Gibney,  Gilleran,  Green,  J.  I.,  Hotchkiss,  Jenks,  Johnson, 

1.  Sam.,  Kerwin,  Kinkle,  Kurth,  Lewis,  M.  E.,  Maybee,  McLaugh- 
lin,  J.  W.,  Meyenborg,  Moore,  Morton,  Ohmeis,  Parmenter,  Pea- 
body,  Pool,  Porter,  Rogers,  Speer,  Springweiler,  Storm,  Sullivan, 
W.,  Titus,  Towns,  Truax,  C.  S.,  Tucker,  Turner  —  50. 

The  President  —  The  Secretary  will  call  general  orders. 

Mr.  Root  —  Mr.  President,  I  ask  unanimous  consent  to  make  a 
report  from  the  Judiciary  Committee. 

The  President  —  Unless  objected  to  as  out  of  order  the  report  of 
the  Judiciary  Committee  will  be  read. 

No  objection  having  been  made  the  Secretary  read  the  report  of 
the  Judiciary  Committee  as  follows: 


August  8.]  CONSTITUTIONAL  CONVENTION.  165 

Mr.  Root,  from  the  Committee  on  Judiciary,  to  which  was 
referred  the  resolution  No.  153,  introduced  by  Mr.  McLaughlin, 
asking  for  information  from  the  Board  of  Claims,  reports  in  favor 
of  the  passage  of  the  same. 

The  President  —  The  Secretary  will  read  the  resolution. 

The  Secretary  read  the  resolution  as  follows  (No.  153): 
Resolved,  That  the  Attorney-General  of  this  State  be  requested 
to  furnish  forthwith  to  this  Convention  a  statement  of  the  number 
of  causes  actually  litigated  and  tried  before  the  Board  of  Claims 
during  the  last  five  years,  by  years,  together  with  the  statement  of 
the  time  when  each  cause  was  first  put  at  issue  or  the  claim  filed  in 
said  court,  and  the  time  when  such  claim  was  actually  tried  and  dis- 
posed of,  and  the  name  and  post-office  address  of  the  attorney  for 
each  claimant. 

The  President  put  the  question  on  the  adoption  of  the  resolution, 
and  it  was  determined  in  the  affirmative. 

Mr.  Tucker  —  I  ask  unanimous  consent  to  make  a  minority 
report  from  the  Committee  on  Suffrage. 

The  President  —  Mr.  Tucker  presents  a  minority  report  from  the 
Committee  on  Suffrage,  which  will  be  read  by  the  Secretary. 

tThe  Secretary  read  the  minority  report  as  follows  (Document 
Xo.  48): 

To  the  Constitutional  Convention: 

The  undersigned,  a  minority  member  of  the  Committee  on 
Suffrage,  respectfully,  but  positively,  opposes  the  adoption  by  the 
Convention  of  the  report  of  the  majority  of  said  committee  in  favor 
of  the  amendment  (No.  8),  introduced  by  Hon.  Mr.  Gilbert,  impos- 
ing as  a  qualification  for  the  exercise  of  the  right  of  suffrage,  that 
the  voter  must  be  able  to  read  the  Constitution  in  the  English  lan- 
guage. He  believes  such  a  condition,  imposed  upon  the  right  of 
voting  to  be  unjust  to  our  adopted  citizens  of  Continental  European 
birth.  He  will  never  consent  to  disfranchise,  now  or  hereafter,  any 
American  citizen,  and  deprive  him  of  his  voice  and  a  share  in  the 
government,  and  of  the  privilege  and  the  protection  of  voting 
for  those  who  are  to  conduct  and  administer  it,  because  that  citizen 
learned  in  his  childhood  to  speak  in  a  tongue  other  than  English 
He  submits  that  the  broad  and  generous  spirit  of  American 
democracy  revolts  at  distinctions  among  citizens,  founded  upon  the 
accident  of  birth  and  language.  Our  fathers  abolished  such  dis- 
tinctions, and  their  sons  should  refuse  to  restore  and  sanction  them. 


166  REVISED  RECORD.  [Wednesday, 

The  undersigned,  therefore,  respectfully  recommends  that  the 
Convention  strike  out  from  the  first  section  of  the  second  article,  as 
reported  by  the  committee,  the  following  words : 

"  Who  shall  not  be  able  to  read  the  Constitution  in  the  English 
language,  and  write  his  name." 

GIDEON  J.  TUCKER. 
August  8,  1894. 

Mr.  Cochran  —  Mr.  President,  as  it  might  appear  from  that  report 
that  Mr.  Tucker  was  the  only  member  who  voted  against  this  pro- 
posed amendment,  I  might  say  that  all  the.  Democrats  on  the  Com- 
mittee on  Suffrage  voted  against  it,  and  we  have  not  joined  in  any 
adverse  report  for  the  reason  that  this  report  was  not  submitted  to 
us  for  our  consideration. 

Mr.  Tucker  —  As  a  matter  of  privilege,  I  desire  to  say,  that  there 
was  no  co-operation  or  consultation  among  the  Democratic  mem- 
bers of  the  committee.  I  was  informed,  after  an  absence,  that  a 
sanction  had  been  given  by  a  majority  of  the  committee  to  this 
remarkable  constitutional  amendment,  and  I  desire  to  make  this 
report. 

The  President  —  This  report  will  be  open  for  consideration  when 
the  majority  report  is  before  the  Convention. 

Mr.  Tucker  —  I  ask  that  it  be  printed. 

The  President  put  the  question  on  ordering  the  report  printed, 
and  it  was  determined  in  the  affirmative. 

The  Secretary  called  general  order  No.  6,  introduced  by  Mr. 
Alvord. 

No.  6  was  not  moved. 

The  Secretary  called  general  order  No.  5,  introduced  by  Mr. 
A.  H.  Green. 

No.  5  was  not  moved. 

The  Secretary  called  general  order  No.  7,  introduced  by  Mr. 
Holls. 

No.  7  was  not  moved. 

The  Secretary  called  general  order  No.  14,  introduced  by  Mr. 
Mereness. 

No.  14  was  not  moved. 

The  Secretary  called  general  order  No.  15,  introduced  by  Mr. 
Tucker. 

No.  15  was  not  moved. 


August  8.]  CONSTITUTIONAL  CONVENTION.  167 

The  Secretary  called  general  order  No.  16,  introduced  by  Mr. 
Vedder. 

Xo.  16  was  not  moved. 

The  Secretary  called  general  order  No.  8,  introduced  by  Mr. 
Lauterbach. 

No.  8  was  not  moved. 

The  Secretary  called  general  order  No.  13. 

Mr.  J.  Johnson  —  Mr.  President,  I  move  that  we  go  into  Com- 
mittee of  the  Whole  on  No.  13. 

The  President  put  the  question,  and  it  was  determined  in  the 
affirmative. 

The  House  resolved  itself  into  a  Committee  of  the  Whole  on 
O.  369,  printed  No.  376,  proposed  constitutional  amendment  to  pro- 
vide home  rule  for  cities.  Mr.  I.  S.  Johnson  in  the  chair. 

The  Chairman  —  Mr.  Johnson,  of  Kings,  has  the  floor. 

Mr.  J.  Johnson  —  Mr.  Chairman,  I  shall  claim  your  attention  but 
a  very  few  moments  to  complete  that  which  was  in  my  mind  at  the 
adjournment  yesterday.  Since  that  time  I  have  been  favored  with  a 
letter  from  the  Hon.  Seth  Low,  for  four  years  mayor  of  the  second 
city  in  population  in  the  State.  It  entirely  endorses  the  proposition 
which  we  present,  and  fully  discussing  it,  with  a  wisdom,  I  think, 
gathered  both  from  much  study  and  full  experience,  presents  the 
questions  suggested  by  the  amendment.  I  desire  that  the  Conven- 
tion should  have  this  document  before  them.  Time  is  too  valuable 
to  tire  their  patience  by  reading  a  paper  of  this  kind.  I  would, 
therefore,  ask  that  it  be  considered  as  read  and  printed  as  a  part  of 
my  remarks  in  the  debate. 

The  following  is  the  letter  referred  to: 

NORTH  EAST  HARBOR,  MAINE, 
August  3,  1894. 

Hon.  Jesse  Johnson,  Chairman  of  the  Committee  on  Cities,  Constitutional 
Convention,  Albany,  N.  Y.: 

MY  DEAR  MR.  JOHNSON  . —  Your  letter  of  July  i6th  reached  me  as 
I  was  leaving  the  city.  The  copy  of  the  proposed  amendment,  how- 
ever, did  not  come  to  hand  until  a  day  or  two  ago.  In  the  mean- 
time, I  have  seen  in  the  Evening  Post  of  Saturday,  July  28th,  a  full 
text  of  the  report  of  the  Committee  on  Cities  to  the  Convention. 
As  this  report  differs  in  several  particulars,  all  of  which  I  think  to 
be  improvements,  from  the  proposed  amendment  sent  to  me  by 
yourself,  I  assume  that  the  copy  in  the  newspaper  represents  the 


j68  REVISED  RECORD.  [Wednesday, 

latest  revision  of  the^  proposed  amendment.  Under  these  circum- 
stances, I  accept  this  as  the  text  for  comment. 

I  am  pleased  with  the  amendment  as  a  whole,  believing  it  to  be, 
as  the  committee  claims,  a  long  step  in  the  right  direction.  Nor  do 
I  think  it  can  be  seriously  faulted  for  not  going  further  in  the  direc- 
tion of  granting  to  the  city  legislatures  at  the  present  time  power 
over  municipal  affairs.  It  undoubtedly  is  the  true  ideal  that  the 
city  legislature  should  have  full  power  in  these  particulars.  On  the 
other  hand,  it  cannot  be  forgotten  that  one  power  after  another  has 
been  taken  away  from  the  common  councils  of  our  large  cities, 
because  these  councils  have  abused  the  powers  which  they  once 
enjoyed.  In  other  words,  until  such  bodies  show  themselves  faithful 
over  a  few  things,  it  is  not  unreasonable  to  hesitate  in  granting 
them  full  authority  over  many  things.  I  like  the  scheme  of  the 
amendment,  therefore,  in  recognizing  the  propriety  of  the  principle 
of  home  rule  for  cities,  as  to  matters  purely  local,  and  I  am  inclined 
to  commend  its  conservatism,  rather  than  to  criticise  it,  in  framing 
the  Constitution  of  the  State,  so  as  to  encourage  the  general 
development  of  a  common  council  in  our  cities  that  may  be  trusted 
with  enjoyment  of  these  powers. 

I  like,  again,  the  attempt  in  the  amendment  to  define  the  sub- 
jects as  to  which  the  city  is  entitled  to  home  rule.  The  just  rights  of 
the  cities  have  been  so  frequently  abused  of  late  years  that  the 
demand  for  home  rule  has  been  urged  in  many  quarters  in  terms 
so  sweeping  as  to  seem  to  demand  for  the  locality  the  right  to 
govern  itself  without  reference  to  the  State  at  large.  The  proposed 
amendment  marks  a  great  step,  I  think,  in  the  direction  of  correct 
thinking  on  the  whole  subject.  A  city  cannot  be  sufficient  unto 
itself  in  the  nature  of  the  case.  Even  on  the  material  side  it  must 
obtain  its  supply  of  water  from  outside  of  the  city  limits,  and  it 
must  dispose  of  its  sewage  in  like  manner.  The  powers  of  the  State 
must  constantly  be  called  into  action  in  its  behalf.  I  have  been 
interested  in  noticing  recently  that  in  Massachusetts  it  has  been 
found  necessary  to  create  a  metropolitan  sewerage  district  com- 
prising, besides  Boston,  seventeen  other  cities  and  towns.  It  is  inter- 
esting to  observe  that  the  cost  of  the  metropolitan  sewerage  system, 
thus  provided,  is  met  by  a  loan  for  which  the  credit  of  the  Com- 
monwealth is  advanced,  the  interest  and  sinking  fund  charges  being 
paid  by  the  various  municipalities  and  towns,  under  an  apportion- 
ment according  to  the  benefits  received.  This  action  is  quite  in 
line  with  the  recent  suggestion  of  Commissioner  White,  of  Brook- 
lyn, that  the  day  is  not  far  distant  when  the  State  of  New  York  will 
be  obliged  to  solve  the  water  problem  for  its  great  cities  on  the 


August  8.J  CONSTITUTIONAL  CONVENTION.  169 

sea  board,  by  bringing  the  water  of  the  great  lakes  to  their  doors 
under  a  financial  plan  similar  to  that  which  Massachusetts  has 
adopted  in  dealing  with  the  sewer  question  of  Boston  and  its  neigh- 
borhood. Massachusetts  has  also  created  a  metropolitan  parks 
district,  which  includes,  besides  Boston,  thirty-six  cities  and  towns, 
and  the  thought  is  freely  expressed  that  the  benefits  of  this  mode 
of  procedure  have  not  been  exhausted  in  dealing  with  such  ques- 
tions as  sewers  and  parks.  As  I  read  your  proposed  amendment, 
any  such  legislation  would  still  be  within  the  power  of  the  Legisla- 
ture in  case  of  need.  It  certainly  ought  to  be  so.  In  the  meanwhile, 
in  their  purely  local  aspects,  it  seems  to  me  to  be  clear  that  the  sub- 
jects indicated  in  section  3  are  properly  matters  for  purely  local 
control. 

I  like  the  method  proposed  for  dealing  with  the  question  of  the 
police.  It  doubtless  will  continue  to  be  convenient  in  the  future  as 
it  has  been  in  the  past,  to  allow  the  cities  under  ordinary  conditions 
to  administer  their  own  police  force.  On  the  other  hand,  whether 
the  matter  is  considered  from  the  point  of  view  of  the  State,  or  from 
the  point  of  view  of  the  individual,  it  seems  to  me  clear  that  the 
State  cannot  afford  to  limit  itself  in  relation  to  its  police  powers  even 
in  cities.  The  police  power  in  the  State  is  one  of  the  most  far- 
reaching  attributes  of  sovereignty,  and  I  do  not  think  that  it  should 
be  devolved,  without  reserve  power  of  control,  upon  any  locality. 
The  individual  citizen,  again,  looks  to  the  State  for  the  protection 
of  his  personal  rights,  and  I  do  not  think  it  would  be  satisfactory, 
even  to  the  inhabitant  of  the  cities,  to  substitute  the  locality  for  the 
Commonwealth  as  the  protector  of  his  person  and  his  property. 
On  the  other  hand,  it  does  not  seem  to  me  a  proper  limitation  on  the 
Legislature  to  provide  that  the  appointment  of  the  head  of  the 
police  force  in  a  city  should  be  made  only  by  the  mayor  of  the  city, 
either  with  or  without  the  consent  of  the  common  council.  The 
proposition  that  the  Governor  should  have  the  authority  to  remove 
sheriffs,  seems  to  me  both  reasonable  and  wise. 

I  cannot  close  this  letter  without  expressing  the  hope  that  the 
scheme  embodied  in  section  2  of  the  proposed  amendment,  pro- 
viding for  city  elections  in  the  alternate  odd  years,  will  be  approved 
by  the  Convention.  It  is  customary  to  point  out  that  the  best  city 
government  cannot  be  obtained  so  long  as  the  voters  subordinate 
the  interest  of  their  city  to  success  in  State  and  national  contest.  It 
is  natural  for  those  of  us  who  live  in  cities,  and  who  have  seen  the 
evil  effects  upon  local  government  of  simultaneous  elections  for 
local  officers  and  for  officers  of  the  State  and  nation,  to  be  deeply 
impressed  by  this  aspect  of  the  matter.  It  is  not  so  often  stated, 


I70  REVISED  RECORD.  [Wednesday, 

however,  but  it  is  no  less  true  that  this  separation  of  elections  is  just 
as  important  in  the  interest  of  the  State  and  national  politics  as  it  is 
in  the  interest  of  city  government.  Those  who  are  concerned  most 
in  the  success  of  State  or  national  campaigns  ought  not  to  forget 
that  the  expression  of  public  sentiment  is  likely  to  be  importantly 
changed,  so  far  as  the  State  as  a  whole  is  concerned,  if  the  spoils  of 
the  cities  can  be  thrown  into  the  balance  on  one  side  or  the  other. 
\Yhile,  therefore,  the  scheme  suggested  in  section  2  of  the  pro- 
posed amendment  is  of  very  great  importance  to  the  cities,  I  would 
like  to  emphasize  the  fact  that  it  is  of  no  less  importance  to  all  the 
other  parts  of  the  State. 

The  effort  to  secure  equal  majority  and  minority  representation 
in  all  the  election  boards  of  the  cities  must  commend  itself  to  all 
citizens,  whether  or  not  they  approve  of  the  particular  scheme  sug- 
gested in  the  proposed  amendment.  I  venture  to  express  the  hope 
that  whatever  policy  may  be  adopted  in  this  matter  as  to  the  cities 
will  be  made  uniform  throughout  the  State.  Our  interests  are 
identical  in  that  particular,  and  there  does  not  seem  to  be  any  reason 
why  the  cities  should  be  differently  treated  in  this  respect  from  the 
country  districts.  Thanking  you  for  the  opportunity  of  examining 
this  amendment,  I  am, 

Yours  very  respectfully, 

SETH  LOW. 

There  is  a  single  suggestion  in  reference  to  the  power  of  the 
Legislature.  I  think  I  stated  yesterday  that  acts  were  rarely,  if 
ever,  passed  against  the  protest  of  the  executive  of  the  city.  I  do 
not  desire  to  be  understood  in  that,  that  it  does  not  very  fre- 
quently happen  that  such  acts  are  passed  that  are  not  favored  by  the 
executive  of  cities,  that  are  believed  to  be  in  accordance  with  the 
best  good  of  the  city,  but  the  situation  is  that  every  administration  is 
confronted  with  such  an  array  of  proposed  legislation,  that,  singling 
out  that  which  he  deems  most  pernicious,  it  seems  to  be  the  duty 
and  object  of  the  executive  to  defeat  those;  and  in  this  I  think  he 
generally  succeeds.  But  the  full  power  to  resist  such  legislation  I 
think  should  be  given  him.  In  what  I  said  yesterday  I  stated  that 
the  situation  in  our  great  cities  as  to  the  legislative  power,  referring 
to  the  entire  absence  or  almost  entire  absence  of  legislative  power 
in  the  common  council  of  New  York  city,  that  the  situation  was 
such  that  the  proper  demand,  for  some  way  to  have  a  new  form  of 
common  council  with  minority  representation,  could  not  safely  be 
disregarded.  I  say  that  whether  I  believed  it  was  proper  or  not. 
I  should  believe  that  I  did  a  great  wrong  did  I  not  leave  it,  so  the 


August  8.]  CONSTITUTIONAL  CONVENTION.  171 

Legislature,  in  their  wisdom  and  with  their  opportunity,  might 
provide  for  the  experiment.  But  I  believe  there  is  great  merit  in  the 
proposition,  and  I  beg  of  gentlemen,  who,  perhaps,  represent  dis- 
tricts differently  situated,  to  consider  the  situation  in  the  great 
cities.  What  would  my  friends  from  the  northern  counties  of  the 
State  say  of  electing  a  Legislature  of  128  on  a  general  ticket,  so  that 
the  party  that  had  the  votes  should  have  the  entire  Legislature? 
You  would  say  that  was  wrong.  That  localities  should  be  repre- 
sented I  agree.  But  why  localities?  What  is  the  reason  of  it?  The 
reason  is  that  different  localities  represent  different  interests,  differ- 
ent businesses,  different  pursuits,  different  thoughts  and  different 
classes  of  citizens  of  the  State,  and  so  by  the  principle  of  locality 
representation  you  secure  representation  of  the  different  parts  and 
thoughts  of  workingmen  and  citizens  of  the .  State.  Go  with  me 
then  to  the  great  cities  and  ask  the  question  whether  locality  repre- 
sentation does  there  effect  what  it  does  in  the  northern  or  western 
parts  of  the  State.  A  man  elected  from  any  particular  ward  of  the 
city  of  New  York  or  Brooklyn  practically  does  not  represent  any 
different  interests  or  different  thoughts  or  any  different  pursuits, 
from  those  elected  from  any  other  locality.  The  reasons  which  exist 
for  locality  representation  do  not  exist  in  cities,  because  of  the  great 
swarming  of  populations  so  close  together  that  the  distinction  of 
locality  does  not  exist.  How  then  shall  we  do  something  for  the 
city,  to  give  the  same  kind  of  representation  for  all  that  you  do  by 
the  locality  representation  in  the  country?  In  no  way  that  I  know 
of,  certainly  no  way  so  effectively,  as  by  the  proposition  that  people 
will  divide  themselves  and  make  their  locality  according  to  their 
thoughts,  their  interests,  their  pursuits;  that  they  may  divide  them- 
selves and  ask  and  obtain  representation  according  to  their  num- 
bers in  the  common  council.  And  remember  that  this  is  only 
locally;  that  this  is  only  the  legislative  power  of  the  city.  Consider, 
if  you  please,  whether  it  is  not  wise  to  allow  the  trial  to  be  made; 
whether  or  not  we  are  not  liable  to  imperil  one  of  the  great  supports 
that  are  looked  to  for  upbuilding  popular  government  in  the  cities. 
I  think,  Mr.  Chairman,  I  have  concluded  all  that  I  would  present 
at  this  time  on  these  articles.  I  have  to  thank  the  gentlemen  of  the 
Convention  for  the  patience  with  which  they  have  listened  to  me  in 
the  time  that  I  have  taken.  The  question  seemed  to  us  important; 
seemed  to  us  not  altogether  understood,  and  that  is  the  apology 
for  the  time  that  I  have  taken.  With  that,  Mr.  Chairman,  I  have  to 
say  that  I  regret  the  necessity  of  the  parliamentary  motion  that  was 
made  yesterday  to  strike  out  the  enacting  clause,  and  I  withdraw 
that  motion. 


172  REVISED  RECORD.  [Wednesday, 

Mr.  Dean  —  Mr.  Chairman,  I  have  before  me  the  most  wonderful 
concept  of  civil  government  since  the  fair  Egyptian  sat  in  the 
shadow  of  the  pyramids,  watching  the  daylight  dying.  Aye,  were 
I  to  carry  the  period  back  to  our  protoplasmic  ancestry,  I  am  cer- 
tain no  fact  of  history  would  arise  to  confute  me.  I  have  searched 
the  great  tomes  of  the  Indian  law  library,  reaching  back  to  the  time 
when  Buddah  was  a  boy.  I  have  searched  the  pages  of  history 
from  Josephus  down  through  the  ages,  including  the  carefully 
bound  State  papers  of  Governor  Flower  (laughter),  but  I  find  no 
parallel.  True,  I  have  found  suggestions  of  men,  wise  and  other- 
wise, bearing  upon  some  of  the  lines  of  thought  which  are  con- 
tained in  this  emanation,  but  they  were  vague  and  fragmentary, 
like  those  flood-tides  of  inspiration  which  come  to  us  in  our  sleeping 
moments,  and  vanish  at  the  waking.  They  had  in  them  none  of  that 
evidence  of  mental  indigestion,  disturbing  to  the  very  vitals  of  the 
body  politic  which  are  so  conspicuous  in  this  report  of  the  Com- 
mittee on  Cities,  which  is  now  before  us. 

I  shall  pass  over,  Mr.  Chairman,  the  high  crimes  and  misde- 
meanors committed  against  the  king's  English  in  this  remarkable 
report.  These  are  matters  of  a  pen  stroke  and  of  the  passing  hour. 
But  the  ideas  —  I  cannot  call  them  principles  —  involved  in  this 
proposed  amendment  touch  all  the  coming  years,  and  in  my  judg- 
ment mark  the  pathway  to  a  tragedy  in  civil  government. 

Let  me  call  the  attention  of  the  committee  to  this  remarkable 
document.  In  the  first  section  we  are  told  that  "  the  Legislature 
shall  pass  general  laws  for  the  incorporation  of  new  cities."  We 
organize  a  new  city  in  this  State  about  once  in  five  years,  and  fur- 
ther comment  upon  this  matter  is  not  necessary.  Then  we  are 
told  that  "  every  city  shall  have  a  common  council,  which  shall  con- 
sist of  one  or  two  bodies."  A  common  council  of  one  or  two  bodies 
would  be  in  the  nature  of  a  physical  as  well  as  a  literary  curiosity, 
but  the  essential  viciousness  of  the  proposition  is  contained  in  the 
provision  that  these  bodies  shall  be  "  elected  with  or  without  cumu- 
lative voting  or  proportionate  or  minority  representation."  Of  all 
the  fallacies  in  an  era  full  of  fads,  this  idea  of  curing  the  ills  of 
popular  government  by  minority  or  proportional  representation  is 
the  most  foolish.  The  true  theory  of  democratic  government  is  not 
in  the  representation  of  every  crank  and  every  ism  in  legislative 
bodies,  but  in  carefully  selecting  the  men  and  the  measures  which 
shall  conserve  the  greatest  good  for  the  greatest  number.  Let  us 
look,  for  a  moment,  at  the  logical  result  of  proportional  representa- 
tion in  its  effect  upon  a  municipal  government.  Assume  that  in  a 
given  community  the  common  council  is  made  up  on  a  basis  of  100 


August  8.]  CONSTITUTIONAL  CONVENTION.  173 

representatives.  We  will  suppose,  for  the  sake  of  this  argument, 
that  the  Republicans  are  in  a  majority  in  sixty  of  the  election  dis- 
tricts, and  that  the  Democratic  party  is  in  the  majority  in  forty  of 
them.  This  would,  under  the  American  system,  give  responsible, 
representative  government.  This  new-fangled  proportional  repre- 
sentation steps  in,  however,  and  in  the  forty  Democratic  districts, 
the  Republicans  and  Populists  each  succeed  in  choosing  a  number 
proportionate  to  the  number  of  votes  cast,  and  the  Democrats  and 
Populists  in  the  Republican  districts  do  the  same  thing.  The 
result,  we  will  assume,  has  been  to  elect  sixty  Republicans,  twenty- 
five  Democrats,  ten  Populists  and  five  Socialist-labor  men.  This 
has  nominally  left  the  Republicans  in  command  of  the  majority  of 
the  voters  of  the  body,  but  as  a  matter  of  fact,  a  considerable  por- 
tion of  them  having  been  chosen  by  minorities  in  Democratic  or 
Populistic  districts,  they  are  not  responsible  representatives  of  the 
majority,  and  they  are  free  to  follow  out  their  own  inclinations.  A 
portion  of  all  legislative  bodies,  in  the  very  nature  of  things,  will  be 
weak  or  vicious,  and  honest  men  are  bound  to  disagree  on  measures 
of  importance,  so  that  it  is  safe  to  assume  that  out  of  the  sixty 
Republicans  elected  in  this  supposed  body,  five  or  six  would 
naturally  oppose  the  majority.  If  we  add  to  this  the  number  who 
have  been  chosen  by  minorities  —  and  they  are  in  no  wise  respon- 
sible for  their  conduct  to  the  majority  —  we  have  a  condition  where 
it  would  be  unfair  and  unreasonable  to  hold  the  party  responsible 
for  the  conduct  of  affairs.  It  has  been  the  experience  of  all  repre- 
sentative governments  that  the  minority  parties  combine  against 
the  majority,  and  the  inducement  in  the  case  we  have  supposed 
would  be  very  strong.  Of  the  twenty-five  Democrats,  five  or  six 
would  have  been  chosen  by  minorities  in  Republican  districts,  and 
an  equal  portion  of  the  Populists  would  owe  their  choice  to  sub- 
stantially the  same  condition,  and  so  on  through  the  entire  list. 
These  would  have  the  double  incentive  of  partisanship  and  of  irre- 
sponsibility to  constituents  for  combining  against  the  Republican 
majority  while  the  party  nominally  in  the  majority  would  be  unable 
to  command  its  full  strength  from  the  fact  that  the  members  com- 
posing the  balance  of  power  would  owe  their  election  to  minorities, 
and  under  the  pretext  of  independence  would  be  moved  to  act  as 
their  interests  might  dictate,  rather  than  from  any  settled  conviction 
of  right  and  wrong.  In  other  words,  proportional  representation 
means  an  abandonment  of  responsible,  representative  government 
by  parties  and  majorities,  and  a  substitution  of  government  by  indi- 
viduals, chosen  by  chance.  Irresponsible  government,  Mr.  Chair- 
man, is  chaos,  and  chaos  is  anarchy,  and  I  am  opposed  to  any 


REVISED  RECORD.  [Wednesday, 

system  of  government  for  cities,  or  for  any  political  division  of  the 
State,  which  does  not  make  the  official  a  responsible  part  of  the 
machinery  of  government. 

Mr.  Chairman,  I  do  not  share  in  the  modern  dread  and  distrust 
of  partisanship.  Devotion  to  party  is  obedience  to  the  first  dictates 
of  patriotism,  and  while  abuses  have  occurred  in  the  name  of  party, 
they  fall  into  insignificance  compared  with  the  greater  abuses  which 
are  certain  to  follow  the  inauguration  of  a  government  founded  upon 
the  rule  of  minorities,  constituting  the  balance  of  power,  and  owing 
allegiance  only  to  minorities,  and  to  individual  conceptions.  I  say 
that  any  party  in  its  aggregate  wisdom,  that  any  party  in  its  devo- 
tion to  principles,  is  superior  to  the  individual  judgment  of  any  man 
within  its  membership,  and  any  system  of  government  which  seeks 
to  eliminate  the  conserving  influence  of  parties  is  false  to  the  Repub- 
lic, and  it  should  not  be  tolerated  and  encouraged. 

This  most  remarkable  proposition  then  goes  on  to  say  that  the 
Legislature  shall  not  pass  any  laws  other  than  general  laws,  or 
general  city  laws,  except  as  permitted  by  section  four,  in  any  cases 
affecting  cities  in  respect  to  parks,  streets,  water-works,  etc.  In 
section  four  we  find  that  "  laws  may  be  passed  affecting  one  or  more 
of  the  subjects  enumerated  in  the  last  preceding  section,  in  any  city, 
on  the  consent  of  the  mayor,  or  the  mayor  and  common  council  given 
as  hereinafter  provided.  The  enacting  clause  of  such  acts  shall  be, 
'  The  People  of  the  State  of  New  York,  represented  in  Senate  and 
Assembly,  and  by  and  with  the  consent  of  the  mayor,  or  the  mayor 
and  common  council,  do  enact  as  follows/  "  What  a  conception  of 
representative  government!  The  creator  of  a  municipal  govern- 
ment to  enact  laws  for  its  government,  by  and  with  the  consent  of 
its  creation.  The  effect  of  this  provision  would  be  to  make  the 
mayor,  or  the  mayor  and  common  council,  the  legislative  authority 
over  the  city  without  being  responsible  for  the  enactment.  The 
Legislature  would  pass  all  such  bills,  because  it  would  assume  that 
the  law  was  desirable,  or  at  least  that  the  municipality  would  hold 
the  authorities  responsible  for  it,  but  as  a  matter  of  fact,  the  machine 
in  a  municipality  like  New  York  or  Brooklyn  could  afford  to  sacri- 
fice its  mayor  and  common  council  in  the  work  of  securing  patron- 
age, and  the  good  that  was  expected  would  be  impossible  under  this 
complication  of  machinery.  Every  time  we  depart  from  the  digni- 
fied declaration  that  the  "  legislative  power  shall  be  vested  in  a 
Senate  and  Assembly,"  and  attempt  to  correct  abuses  by  a  complica- 
tion of  machinery,  we  are  drifting  away  from  safe  principles,  and  I 
trust  this  Convention  will  not  go  before  the  people  upon  an  issue 


August  8.]  CONSTITUTIONAL  CONVENTION.  175 

which  will  force  many  of  its  individual  members  to  take  the  position 
of  opposing  its  passage. 

In  section  six  we  find  a  provision  commanding  the  creation  of 
election  boards  of  equal  party  representation.  This  violates  all 
principles  of  majority  rule,  and  is  so  far  an  experiment,  which  the 
next  few  years  may  demonstrate  to  be  vicious,  that  it  cannot  be 
safely  engrafted  into  the  Constitution.  The  great  essential  to  honest 
elections  is  honest  men,  and  the  sooner  we  abandon  the  mechanical 
morality  which  has  been  attempted  in  dealing  with  this  question, 
and  begin  to  demand  that  the  ballot  shall  be  placed  in  the  hands  and 
under  the  control  of  honest  men,  rather  than  corrupt  and  vicious 
representatives  of  political  machines,  the  more  likely  are  we  to  work 
out  correctly  the  problem  of  municipal  government.  When  the 
community  is  given  to  understand  that  the  integrity  of  its  elections 
must  depend  upon  the  courage  and  the  patriotism  of  its  citizenship, 
rather  than  the  contrivances  of  mechanical  reformers,  we  shall  have 
approached  much  nearer  the  ideal  condition  than  it  is  possible  to 
attain  under  the  emasculating  system  which  it  is  proposed  to  intro- 
duce into  the  fundamental  law  of  the  State. 

The  proposition  to  make  legislatures  and  municipalities  honest 
by  reducing  the  number  of  legislative  sessions  is  very 
much  like  the  old  school  physicians  seeking  to  make  a 
man  well  by  draining  a  part  of  his  life,  so  that  he  should 
only  be  half  as  sick  as  he  was  at  the  beginning  of  the  operation. 
The  greatest  evil  of  modern  legislation  is  the  haste  with  which  bills 
are  allowed  to  become  laws.  If  we  have  a  session  of  the  Legislature 
only  once  in  two  years  the  result  must  be  to  crowd  a  greater  amount 
of  labor  into  a  shorter  space  of  time,  and  to  augment  the  evil.  The 
great  trouble  with  these  magazine  reformers,  Mr.  Chairman,  is  the 
fact  that  they  have  not  stopped  to  digest  the  suggestions  which 
have  come  to  them.  They  have  not  applied  to  them  the  tests  of 
correct  principles,  or  the  knowledge  of  human  nature  which  should 
characterize  all  true  reformers.  They  have  accepted,  as  of  course, 
the  vicious  and  unpatriotic  contention  that  all  men  are  corrupt  and 
dishonest,  and  they  have  fondly  imagined  that  out  of  this  chaos  of 
corruption  they  were  going  to  create  a  millennium  by  means  of 
applied  mechanics.  They  started  in  some  years  ago  by  creating  a 
civil  service  commission,  which  was  to  determine  everything  by  the 
rule  of  mathematics,  and  the  modern  balloting  contrivances,  includ- 
ing the  machine  which  is  seeking  recognition  in  this  Convention,  is 
the  logical  result  of  that  system  of  reform,  which  has  served  no 
other  useful  purpose  than  to  increase  the  civil  list,  and  to  allow  cer- 
tain inconsequential  individuals  to  strut  their  brief  day  before  the 


176  REVISED  RECORD.  [Wednesday, 

public  gaze,  clothed  in  self-satisfaction,  and  raiment  purchased  at 
the  expense  of  the  taxpayers  of  the  State.  Men  will  do,  Mr.  Chair- 
man, about  what  they  are  expected  to  do.  If  we  form  our  laws 
upon  the  theory  that  those  who  are  -to  work  under  them  will  be 
thieves  we  shall  have  laid  the  foundation  for  corruption,  while  if  we 
recognize  the  fact  that  this  government  must  rest  upon  the  integrity 
of  its  citizenship,  and  form  a  plan  which  will  call  for  the  services  of 
honest  men,  under  conditions  permitting  of  honesty  and  self-respect, 
we  shall  have  builded  upon  a  foundation  which  the  ebb-tides  of 
anarchy  and  discontent  cannot  overthrow. 

In  the  proposed  amendment  which  I  have  offered,  Mr.  Chairman, 
I  have  departed  from  no  well-tried  principle  of  popular  government. 
I  have  sought  to  give  absolute  home  rule  to  the  people  of  muni- 
cipalities, reserving  to  the  Legislature  the  right  to  correct  evils 
which  time  may  develop,  and  I  hope  that  this  Convention  will  give 
it  that  consideration  which  has  been  denied  it  by  the  committee 
which  has  seen  fit  to  introduce  this  monstrosity  in  the  domain  of 
civil  government.  (Applause.) 

I  now  offer  proposed  constitutional  amendment  Xo.  22,  as  a 
substitute  for  Mr.  Johnson's  proposition. 

Mr.  Hotchkiss  —  Mr.  Chairman,  the  chairman  of  the  Cities  Com- 
mittee reminds  me  of  an  adventurous  knight  who,  having  under- 
taken a  perilous  enterprise  for  the  purpose  of  establishing  his  fame, 
bound  himself  in  honor  and  chivalry  to  turn  back  for  no  difficulty  or 
hardship  and  never  to  shrink  or  quail  whatever  enemy  he  might 
encounter. 

Mr.  Alvord  —  Mr.  Chairman,  I  rise  to  a  point  of  order. 

The  Chairman  —  Mr.  Alvord  will  state  his  point  of  order. 

Mr.  Alvord  —  Mr.  Chairman,  my  point  of  order  is  that  the  sub- 
stitute must  be  read  before  the  gentleman  can  make  any  remarks 
unless  the  committee  dispenses  with  the  reading  of  the  amendment. 

The  Chairman  —  The  point  of  order  is  well  taken.  The  Secre- 
tary will  read  the  substitute. 

Mr.  Mereness  —  Mr.  Chairman,  I  move  that  the  reading  of  this 
substitute  be  dispensed  with. 

(Several  voices)  —  Oh,  no. 

Mr.  Mereness  —  It  will  take  a  week  to  read  it. 

Mr.  Moore  —  Mr.  Chairman,  I  move  to  amend  the  motion  of 
Mr.  Mereness  that  we  take  it.  up  by  sections  and  that  the  Clerk  shall 
read  it  by  sections. 

Mr.  Mereness  —  The  substitute? 


August  8.}  CONSTITUTIONAL  CONVENTION.  177 

Mr.  Moore  —  Yes. 

Mr.  Mereness  —  Mr.  Chairman,  I  make  the  point  of  order  that 
that  motion  is  not  in  order;  that  a  substitute  must  be  adopted  as  a 
whole  or  not  at  all. 

The  Chairman  —  The  Chair  rules  that  the  point  of  order  is  well 
taken. 

Mr.  Alvord  —  Mr.  Chairman,  I  make  the  point  of  order  that  the 
motion  of  the  gentleman  at  my  right  (Mr.  Mereness)  is  not  in  order, 
because  any  gentleman  has  a  right  to  have  read  from  the  desk  any 
amendment  or  substitute  which  is  offered.  I  call  for  the  reading 
of  the  substitute. 

The  Chairman  —  The  Chair  rules  that  the  point  of  order  is  well 
taken,  and  that  any  member  has  the  right  to  demand  the  reading  of 
a  substitute. 

Mr.  M.  E.  Lewis  —  I  call  for  the  reading  of  the  substitute. 

Mr.  Cochran  —  Mr.  Chairman,  as  a  substitute  for  the  motion  of 
Mr.  Mereness,  I  move  that  section  i  of  the  substitute  be  substituted 
for  section  I  of  the  proposed  amendment  submitted  by  the  Com- 
mittee on  Cities. 

The  Chairman  —  The  Chair  rules  that  any  member  has  the  right 
to  demand  the  reading  of  a  substitute,  and  as  a  matter  of  course  the 
reading  follows. 

The  Secretary  proceeded  with  the  reading  of  the  substitute. 

Mr.  Dean  —  At  the  request  of  gentlemen  who  want  to  save  time, 
and  I  am  as  much  in  favor  of  saving  time  as  anyone,  I  will  with- 
draw my  motion  and  move  to  substitute  simply  the  first  paragraph. 

Mr.  M.  E.  Lewis  —  Mr.  Chairman,  I  object  to  that.  Under  the 
ruling  of  the  Chair,  just  made,  I  take  it  that  the  demand  for  the 
reading  of  the  substitute  has  been  made,  and  no  motion  of  this  kind 
is  in  order  at  this  time. 

The  Chairman  —  The  point  of  order  is  well  taken. 

Mr.  E.  R.  Brown  —  Mr.  Chairman,  I  would  like  to  inquire  if  the 
gentleman  does  not  desire  to  have  it  read,  will  the  Convention  still 
insist  upon  having  it  read? 

The  Chairman  —  The  Chair  holds  that  the  request  for  its  reading 
having  been  made,  and  the  reading  having  been  proceeded  with,  it  is 
the  property  of  the  House  and  cannot  be  withdrawn. 

Mr.  E.  R.  Brown  —  I  move  that  leave  be  granted  to  withdraw  the 
request. 

12 


178  REVISED  RECORD.  [Wednesday, 

Mr.  M.  E.  Lewis  —  Mr.  Chairman,  I  rise  to  the  point  of  order 
that  that  motion  is  not  in  order. 

The  Chairman  —  The  Chair  has  already  ruled  on  the  question. 
The  Secretary  will  proceed  with  the  reading. 

Mr.  E.  R.  Brown  —  I  move  that  the  further  reading  of  the  sub- 
stitute be  dispensed  with. 

Mr.  Becker  —  Mr.  Chairman,  with  regret  I  rise  to  the  same  point 
of  order  that  Mr.  Lewis  did,  that  this  must  be  read  as  a  whole,  as 
it  is  now  before  the  House.  We  want  to  know  what  this  substitute 
is  that  is  put  in  here  for  the  report  on  the  Committee  on  Cities,  so 
that  we  may  know  how  it  bears  on  the  report  of  that  committee. 
Yesterday  the  Chair  ruled  that  it  could  not  be  printed  as  a  whole. 

(Several  voices)  —  It  has  been  printed. 

Mr.  Becker  —  If  the  matter  has  been  printed,  I  withdraw  my 
point  of  order. 

Mr.  E.  R.  Brown  —  Mr.  Chairman,  I  desire  to  make  the  point  of 
order  that  under  the  ruling  of  the  Chair,  if  the  House  became 
engaged  in  the  reading  of  a  document  which  would  take  three 
clays,  there  could  be  no  relief  from  it. 

Mr.  Alvord  —  Mr.  Chairman,  I  rise  to  a  point  of  order.  No 
motion  upon  the  floor  of  this  committee  can  be  entertained  until 
this  matter  has  been  read  through  at  the  request  of  any  one  member. 

The  Chairman  —  The  Chair  rules  that  the  point  of  order  is  well 
taken  and  that  this  matter  must  be  read  through,  and  that  ruling 
will  stand  unless  there  is  an  appeal  from  the  decision  of  the  Chair. 

Mr.  E.  R.  Brown  —  Mr.  Chairman,  I  desire,  and  do  appeal  from 
the  decision  of  the  Chair. 

Mr.  Jesse  Johnson  —  Mr.  Chairman,  on  behalf  — 

Mr.  Hotchkiss  —  Mr.  Chairman,  I  raise  the  point  of  order  that  an 
appeal  from  the  decision  of  the  Chair  is  not  debatable. 

Mr.  Johnson  —  I  merely  wished  to  say  that  I  hope  the  request  of 
the  gentleman  will  be  granted. 

Mr.  Hotchkiss  —  Mr.  Chairman,  I  submit  that  I  should  have  a 
ruling  on  my  point  of  order. 

The  Chairman  —  The  Chair  would  state  that  the  point  of  order  is 
well  taken.  The  question  is,  shall  the  decision  of  the  Chair  stand 
as  the  decision  of  the  Convention? 

Several  members  demanded  the  ayes  and  noes. 

The  Chairman  —  The  Chair  rules  that  the  ayes  and  noes  cannot 
be  taken  in  the  Committee  of  the  Whole. 


August  8.]  CONSTITUTIONAL  CONVENTION.  179 

The  Chairman  put  the  question,  shall  the  decision  of  the  Chair 
stand  as  the  decision  of  the  House,  and  it  was  determined  in  the 
affirmative. 

The  Secretary  proceeded  with  the  reading  of  the  substitute. 

Mr.  Lincoln  —  Mr.  Chairman,  I  move  that  the  committee  now 
rise  and  report  progress  and  ask  leave  to  sit  again. 

Mr.  Mereness  —  I  make  the  point  of  order  that  while  the  sub- 
stitute is  being  read  no  motion  is  in  order  to  rise  and  report 
progress. 

The  Chairman  —  The  Chair  rules  that  the  point  of  order  is  not 
well  taken. 

The  Chairman  put  the  question  on  the  motion  of  Mr.  Lincoln, 
and  it  was  determined  in  the  negative. 

Mr.  Cochran  —  Mr.  Chairman,  I  believe,  sir,  that  we  are  incur- 
ring considerable  delay  through  actions  which  it  is  unnecessary  for 
this  committee  to  take.  I  believe,  sir,  that  any  member  who  has 
made  a  motion  in  this  Convention  has  a  right  even  after  it  is  sec- 
onded to  withdraw  it,  provided  it  is  approved  by  the  action  of  this 
committee,  and  I  move  you,  sir,  that  leave  be  granted  to  Mr.  Dean 
to  withdraw  his  substitute. 

The  Chairman  —  This  requires  unanimous  consent. 

Mr.  Cochran  —  I  submit,  sir,  that  it  requires  only  a  majority  of 
this  committee. 

The  Chairman  —  The  point  of  order  is  not  well  taken. 

Mr.  Cochran  —  I  ask  that  my  motion  be  put. 

The  Chairman  —  The  Chair  has  ruled  that  the  motion  is  not  now 
in  order  and  that  the  proposition  cannot  be  entertained. 

The  Secretary  proceeded  with  the  reading  of  the  substitute. 

Mr.  Cochran  —  I  take  the  liberty  of  calling  the  attention  of  the 
Chair  to  rule  46,  which  provides  that  "After  a  motion  shall  be  stated 
by  the  President,  it  shall  be  deemed  in  the  possession  of  the  Con- 
vention, but  may  be  withdrawn  at  any  time  before  it  shall  be  decided 
or  amended."  I  move  you,  sir,  that  leave  be  granted  to  Mr.  Dean 
to  withdraw  his  substitute. 

The  Chairman  —  The  Chair  does  not  understand  that  Mr.  Dean 
asks  to  withdraw  his  substitute. 

Mr.  Moore  —  Mr.  Chairman,  I  rise  to  a  point  of  order.  My  point 
of  order  is  that  we  are  not  in  Convention;  we  are  in  Committee  of 
the  Whole. 

The  Chairman  —  The  Chair  rules  that  the  same  rules  apply  in 


l8o  REVISED  RECORD.  [Wednesday, 

Committee  of  the  Whole  as  in  Convention,  unless  especially  pro- 
vided otherwise. 

The  Secretary  proceeded  with  the  reading  of  the  substitute. 

Mr.  Morton  —  Mr.  Chairman,  I  believe  that  the  order  of  the 
Convention  is  that  this  substitute  be  read  through.  I  hope  that  it 
will  be  observed. 

The  Secretary  proceeded  with  the  reading  of  the  substitute. 

Mr.  Becker  —  Mr.  Chairman,  I  think  it  is  now  sufficiently  appar- 
ent how  purely  legislative  this  alleged  substitute  is.  It  is  now  half- 
past  twelve.  This  measure  is  already  in  print  ready  to  be  examined 
by  the  members,  and  there  seems  to  be  enough  of  it  to  require 
examination,  in  order  to  prepare  for  the  eloquent  and  learned  dis- 
cussion that  will  undoubtedly  ensue  upon  it.  I,  therefore,  move 
that  the  committee  rise  and  report  progress,  and  ask  leave  to  sit 
again. 

Mr.  Mereness  —  I  would  like  to  inquire,  Mr.  Chairman,  if  the 
reading  of  the  substitute  will  not  have  to  go  on  when  the  com- 
mittee sits  again,  if  this  motion  is  adopted? 

The  Chairman  —  Undoubtedly. 

Mr.  M.  E.  Lewis  —  Unanimous  consent  may  be  given  to  dispense 
with  the  further  reading  of  the  measure. 

Mr.  Becker  —  I  ask  that  unanimous  consent  be  given  now.  I 
withdraw  my  motion  and  ask  that  unanimous  consent  be  given  to 
dispense  with  the  further  reading  of  this  alleged  amendment. 

The  Chairman  —  Is  there  any  objection? 

Mr.  McClure  —  None  if  the  gentleman  will  strike  out  the  word 
"  alleged." 

Mr.  Becker  —  I  strike  it  out  at  the  request  of  the  gentleman  from 
New  York. 

The  Chairman  —  If  there  is  no  objection  such  permission  will  be 
given. 

Mr.  Becker  —  Mr.  Chairman,  I  now  move  that  the  committee 
rise  and  report  progress,  and  ask  leave  to  sit  again. 

The  Chairman  put  the  question  on  the  motion  of  Mr.  Becker  that 
the  committee  do  now  rise,  report  progress  and  ask  leave  to  sit 
again,  and  it  was  determined  in  the  negative. 

Mr.  Cookinham  —  Mr.  Chairman,  I  offer  the  following  as  a  sub- 
stitute for  the  substitute. 

Mr.  Hotchkiss  —  Mr.  Chairman,  I  submit  that  I  had  the  floor 


August  8.J  CONSTITUTIONAL  CONVENTION.  181 

when  I  was  interrupted.  I  had  already  started  to  address  the 
Chair,  and  had  proceeded  with  some  sentences. 

The  Chair  rules  that  Mr.  Hotchkiss  has  not  the  floor,  and  the 
substitute  may  be  offered. 

Mr.  Hotchkiss  —  May  I  rise  to  a  question  of  information.  Under 
what  circumstances,  and  how  is  it  possible  for  a  member  of  this 
Convention  to  retain  the  floor,  when  he  has  been  recognized  by  the 
Chair  and  is  in  the  course  of  addressing  the  Chair  and  is 
interrupted? 

The  Chairman  —  By  keeping  his  position  and  not  sitting  down. 

Mr.  Hotchkiss  —  I  cannot  stand  up  and  proceed  with  remarks 
when  the  Chairman  puts  me  down  and  proceeds  with  another  order 
of  business. 

The  Chairman  rules  Mr.  Hotchkiss  out  of  order. 
Mr.  Dean  —  I  rise  to  a  point  of  order,  Mr.  Chairman,  that  the 
substitute  to  a  substitute  is  not  in  order. 

The  Chairman  —  The  Chair  rules  that  it  cannot  be  considered  at 
present. 

Mr.  Cookinham  —  Mr.  Chairman,  I  do  not  intend  to  have  it  con- 
sidered now.  I  do  not  intend  to  address  the  committee,  but  simply 
to  present  the  substitute,  and  will  gladly  give  way  to  the  gentleman 
from  New  York. 

Mr.  Hotchkiss  —  Mr.  Chairman,  the  minority  in  this  Convention 
having  saved  what  there  is  of  this  proposed  amendment  from  its 
friends  and  enabled  it  to  come  before  the  Convention  for  discussion, 
it  gives  me  very  great  pleasure  to  invite  the  consideration  of  the 
Convention  to  some  of  the  pertinent  features  of  the  amendment 
itself  and  to  some  of  the  considerations  which  have  moved  me  to 
object  to  it  — 

Mr.  Moore  —  Mr.  Chairman,  I  rise  to  a  point  of  order. 

The  Chairman  —  The  gentleman  will  state  his  point  of  order. 

Mr.  Moore  —  My  point  of  order  is  that  the  gentleman  is  inter- 
rupting the  Secretary  in  the  reading  of  this  proposed  amendment. 

The  Chairman  —  The  Chair  decides  the  point  of  order  not  well 
taken. 

Mr.  Hotchkiss  —  The  gentleman  ought  to  read  ancient  history. 

Mr.  Chairman,  the  difficulty  attending  the  administration  of  muni- 
cipal affairs,  which  is  pointed  out  at  such  length  in  the  report  of  the 
majority  of  the  committee,  is  a  difficulty  of  which  this  majority  is 
not  the  discoverer.  It  is  a  difficulty  which  has  attended  the  adminis- 


182  REVISED  RECORD.  [Wednesday, 

tration  of  these  affairs  certainly  for  the  last  seventy-five  years  in  this 
State;  ever,  since  our  municipalities  emerged  from  a  condition 
akin  to  that  of  semi-rural  communities  and  assumed  urban  char- 
acteristics. Substantially  the  same  statistical  information,  sub- 
stantially the  same  arguments,  substantially  the  same  words,  have 
been  used  in  former  Constitutional  Conventions  as  have  been  used 
by  the  committee  in  their  report.  It  is  a  well-known  condition. 
Nor  is  there  anything  new  in  the  discovery  of  home  rule,  so-called. 
Prior  to  about  the  year  1857,  when  government  by  boards  or  com- 
missions was  established,  the  government  of  New  York  city  was 
divided  between  the  city  authorities  and  the  board  of  supervisors. 
By  a  series  of  special  acts,  beginning  in  1857,  a  large  portion  of  the 
affairs  of  the  city  was  taken  out  of  the  hands  of  these  representatives 
of  the  people  and  transferred  to  special  commissions  appointed  by 
the  Governor.  But,  of  course,  these  commissions  were  under  the 
direct  control  of  the  Legislature,  to  which  resort  was  had  for  all 
necessary  legislation.  This  was  the  situation  of  affairs  when,  in  the 
Constitutional  Convention  of  1867,  the  subject  of  the  government  of 
cities  was  taken  up  for  consideration.  In  that  Convention  Judge 
Ira  Harris  was  chairman  of  the  Committee  on  Cities,  and,  on  behalf 
of  the  majority  of  that  committee,  submitted  a  report,  accompanied 
by  an  amendment  covering  a  proposed  scheme  for  the  government 
of  cities.  By  this  amendment  commissions  were  to  be  done  away 
with,  "and  "  local  self-government,"  as  the  phrase  then  went,  was  in 
a  very  limited  degree  restored  to  cities,  and  the  power  of  the  Legis- 
lature to  interfere  in  local  matters  was  restricted  to  an  extent  which 
is  in  amusing  contrast  with  the  provisions  of  the  amendment  before 
us.  Now,  it  appears  that  the  laws,  by  which  the  city  had  been  shorn 
of  the  right  to  regulate  its  own  affairs,  had  been  gradually  accumu- 
lating on  the  statute  books  by  force  of  a  sentiment  created  by  the 
reform  element  of  that  day,  who  were  then  advocates  of  the  com- 
mission theory,  and  who  found  in  the  commission  scheme  a  remedy 
for  all  the  evils  of  municipal  government  as  it  then  existed.  In  the 
course  of  his  remarks  Judge  Harris  quoted  from  a  number  of  New 
York  city  newspapers  in  support  of  his  argument,  and  against  the 
theory  of  State  control  which  then  maintained  and  which  has  been 
continued  in  substantial  form  to  this  day.  In  his  remarks  Judge 
Harris  said  as  follows :  "  In  New  York  city,"  says  a 
leading  journal,  "  we  have  suffered  from  the  vagaries  of 
a  small  but  impudent  and  active  faction  of  theorists  who 
succeeded  by  dint  of  unparalleled  effrontery  in  obtaining 
indorsement  of  their  vagaries  at  Albany.  Denying  the  democratic 
theory  of  government  and  distrusting  the  efficacy  of  appeals  to 


August  8.]  CONSTITUTIONAL  CONVENTION.  183 

the  people,  these  philosophical  politicians  have  had  one  sovereign 
remedy  for  all  disorders  —  the  Brandeth-pills  of  political  economy, 
certain  to  cure  any  disorders  which  affected  communities, — 
and  that  was  to  create  commissions  under  their  control.  The  conse- 
quence is  that  instead  of  laboring  in  New  York  to  reform  and  purify 
popular  sentiment  and  achieve  the  desired  results  at  the  ballot-box, 
they  have  step  by  step  encroached  upon  the  municipality,  destroyed 
its  franchise  an3  taken  away  its  rights." 

Now,  that,  mark  you,  Mr.  Chairman,  was  the  attitude  toward 
home  rule  taken  by  those  who  were  opposed  to  the  so-called 
machine  politicians  of  twenty-seven  years  ago.  The  reform  ele- 
ment in  that  Convention  was  led,  and  of  course  ably  led,  by  that 
flower  of  American  citizenship,  George  William  Curtis.  Mr.  Curtis 
was  an  advocate  then  of  the  State  control-through-commissions' 
theory.  In  the  course  of  his  remarks,  Mr.  Curtis  speaking,  of 
course,  against  the  measure  urged  by  the  chairman  of  the  Cities 
Committee  said  in  part  as  follows :  "  The  people  of  the  State 
should  very  carefully  consider  how  much  of  their  power  shall  be 
unreservedly  delegated  to  the  cities.  *  *  *  Mr.  Chairman, 
experience  proves  the  necessity  of  this  hesitation.  What  is  the 
lesson  of  experience?  It  will  soon  be  forty  years  since  the  system 
of  electing  the  mayor  in  the  city  of  New  York  was  introduced.  Up 
to  that  time  the  delegation  of  power  was  made  by  the  sovereignty  of 
the  State  by  appointing  the  mayor,  but  the  system  was  changed  and 
what  was  the  result?  Why,  sir,  after  thirty  years  of  the  experiment 
of  complete  local  government  in  that  community,  the  experiment 
was  discovered  to  be  a  failure." 

Speaking  for  the  people  of  the  city  of  New  York  he  said:  "  Their 
hope  is  in  the  people  of  this  State.  By  my  lips  at  this  moment  they 
ask  this  Convention  not  to  tie  up  the  hands  of  the  people  of  the  State, 
not  to  abdicate  the  power  of  the  State,  not  to  build  a  wall  between 
that  part  of  the  State  and  the  rest  of  the  people.  They  ask  humbly 
that  this  Convention  will  now  retain  in  the  hands  ot  the  people  that 
authority  which  is  theirs  by  the  authority  and  practice  of  our  insti- 
tutions; that  authority  which  they  are  bound  to  exercise  wisely; 
that  authority  which  they  throw  away  if  they  adopt  the  article 
reported  by  the  chairman  of  the  committee." 

These  were  the  words  of  Mr.  Curtis  and  they  express  the  views 
which  he  held  on  the  subject  of  local  self-government  at  that  time. 
But,  Mr.  Chairman,  we  have  an  authority  with  whom  perhaps  more 
of  us  are  personally  acquainted  than  with  Mr.  Curtis,  who  was  a 
member  of  the  Convention  of  1867,  and  also  is  a  member  of  this 
Convention  and  who  spoke  upon  this  subject  in  1867.  I  refer  to  the 


184  REVISED  RECORD.  [Wednesday, 

gentleman  from  Rensselaer  (Mr.  Francis),  a  gentleman  for  whose 
public  services  and  private  character  alike  I  have  the  most  profound 
respect.  He  was  a  member  of  the  Committee  on  Cities  in  the  Con- 
vention of  1867,  and  his  name  is  second  among  the  signers  of  this 
report  now  before  us.  Mr.  Francis  made  a  long  and  very  able 
speech  against  the  adoption  of  the  proposed  amendment  by  Judge 
Harris.  The  substance  of  it  was  that  the  State  should  not  release 
to  the  municipality  the  rights  which  it  was  necessary  for  the  State 
as  the  parent  of  all  to  maintain,  and  in  the  course  of  his  remarks  the 
gentleman  from  Rensselaer  said:  "  The  chairman  of  the  Committee 
on  Cities  has  submitted  a  report  which  instead  of  one  section  mainly 
devoted  to  cities,  as  in  the  Constitution  of  1846,  has  sixteen  sections. 
Its  effect  if  adopted  would  be  to  make  every  city  in  the  State  a 
little  State  in  itself,  independent  of  legislative  authority.  If  this 
article  goes  into  effect,  New  York  and  Brooklyn  will  be  practically 
independent  States.  This  State  must  abdicate  its  powers  and  yield 
its  sovereignty  to  the  municipalities.  To  this,  I,  for  one,  earnestly 
object." 

Now,  Mr.  Chairman,  I  have  been  wholly  misunderstood,  if  the 
purport  of  what  I  have  already  said  is  interpreted  by  you  or  by  the 
Convention  as  hostile  to  the  principle  of  home  rule;  not  as  given  to 
us  in  the  report  or  amendment  proposed  by  the  committee,  but  as  a 
proposition  to  be  expressed  in  proper  form  and  language  and  to  be 
submitted  to  the  people  with  the  Constitution  we  shall  recommend. 
I  have  only  quoted  what  I  have  quoted  for  the  purpose  of  showing 
you  how  public  sentiment  has  changed  upon  this  subject.  The 
gentleman  from  Rensselaer  would  have  profited  but  little  from  the 
years  of  experience  and  observation  which  have  whitened  his  locks 
if  he  had  not  learned  to  change  his  opinion  when  there  was  proper 
cause  for  it.  I  admire  him  for  that.  But,  Mr.  Chairman,  those  who 
have  perhaps  been  most  earnest  in  seeking  the  adoption  of  this 
principle  of  home  rule  and  cumulative  voting  have  not  been  content, 
in  the  proposition  which  they  have  submitted  to  the  Committee  on 
Cities,  to  allow  the  people  of  the  State  to  make  an  experiment  in 
these  novelties  —  for  certainly  they  are  novelties  in  this  State  — 
but  they  have  proposed  to  us  that  these  measures  be  made  compul- 
sory. That  is,  perhaps,  naturally  to  be  expected  from  the  ardor 
and  enthusiasm  which  are  to  be  found  among  all  extremists.  I  differ 
with  them.  I  do  not  believe  that  we  should  hitch  ourselves  to  an 
experiment,  however  star-like  it  may  appear,  and  I  commend  the 
wisdom  of  the  majority  of  the  Committee  on  Cities  in  so  far  as  they 
have  stepped  away  from  the  compulsory  features  of  the  home  rule 
and  proportionate  representation  proposition,  as  submitted  by  the 


August  8.J  CONSTITUTIONAL  CONVENTION.  185 

committee  of  twenty-one  from  the  confederated  municipal  reform 
clubs  of  the  State,  and  have  made  an  earnest,  although  I  believe  a 
mistaken,  attempt  to  leave  it  optional  with  the  people  to  adopt  those 
alleged  privileges.  I  do  not  speak  for  the  minority  of  this  com- 
mittee, Mr.  Chairman.  I  am  not  their  spokesman.  I  speak  only  for 
myself.  But  I  am  perfectly  willing  to  vote  for  a  measure  which 
shall,  in  constitutional  language  and  in  form  fitted  for  submission  to 
the  people,  give  to  the  people  of  the  State  the  opportunity  to  vote 
upon  this  question  of  home  rule  and  proportionate  representation. 
I  am  myself  perfectly  content  to  do  that.  But,  Mr.  Chairman,  if 
adopted,  these  schemes  will  not  prove  the  panacea  for  the  evils  of 
municipal  government,  nor  will  they  accomplish  what  is  claimed  for 
them  by  their  enthusiastic  friends.  Some  time  was  taken  last  week 
in  this  Convention  by  a  band  of  sweet  and  melodious  exponents  of 
national  unity  to  induce  this  Convention  to  insert  in  the  Constitu- 
tion words  of  allegiance  and  loyalty  to  the  national  government. 
Mr.  Chairman,  in  my  opinion  there  is  no  need  for  that.  The 
crimson  of  Old  Glory  is  indelibly  dyed  into  our  hearts  by  the  blood 
of  those  who  gave  up  their  lives  that  our  country,  one  and  insepar- 
able, might  live  forever.  If  danger  menaces,  it  lies  rather  in  our 
failure  to  solve  this  question  of  government  for  our  cities.  Instead 
of  words  of  reverence  to  the  national  government,  I  would  have,  if 
anything,  words  put  into  our  Constitution  which  would  burn  into  the 
hearts  of  every  man  and  every  woman  and  every  child  in  our  State,  a 
true  conception  of  the  individual  responsibility  which  rests  upon 
everyone  who  wears  the  civic  wreath.  What  we  need,  Mr.  Chair- 
man, is  what  was  referred  to  in  the  excerpt  from  the  New  York 
newspaper  read  by  Judge  Harris  in  his  speech  before  the  Constitu- 
tional Convention  of  1867.  We  need  to  educate  and  cultivate  and 
enlighten  public  sentiment.  We  need  to  teach  our  people  that 
instead  of  considering  municipal  government  as  a  thing  apart,  they 
shall  regard  it  as  something  in  which  they  have  the  most  direct 
and  personal  responsibility.  We  must  educate  them  to  the  point 
where  they  shall  regard  themselves  as  stockholders  in  the  municipal 
corporation;  their  dividends  to  be  measured  by  the  cleanliness  of 
their  streets,  the  good  order  of  their  city,  the  wisdom  and  honesty 
with  which  their  money  is  spent  and  the  manner  in  which  the  laws 
are  enforced.  I  conceive  that  anything  that  we  may  put  into  this 
Constitution  or  into  the  statutes  of  the  State  with  regard  to  the  mere 
method  of  administering  the  laws  to  be  nothing  but  a  means  towards 
the  end. 

Mr.  Chairman  —  In  criticising  in  the  most  general  manner  the 
form  of  this  amendment,  I  cannot  use  more  apt  words  than  were 


186  REVISED  RECORD.  [Wednesday, 

used  by  the  gentleman  from  Rensselaer  in  the  Convention  of  1867. 
Speaking  of  the  article  then  proposed  he  laid  down  or  expressed 
what  I  conceive  to  be  a  perfectly  true  and  correct  rule  of  Constitu- 
tion drafting.  He  said:  "I  object  to  this  whole  article,  to  its 
form  and  to  its  spirit.  The  form  of  the  article  is  more  like  a  legis- 
lative enactment  than  a  constitutional  provision.  It  goes  into 
details,  petty  details;  whereas  a  Constitution  should  deal  only  in 
generalities,  laying  down  fundamental  principles,  and  leaving  details 
to  the  Legislature." 

I  have  already  said  that  I  can  conceive  how  the  gentleman  from 
Rensselaer  could  change  his  mind  upon  a  question  of  principle,  but 
why  he  should  change  his  mind  upon  a  rule  of  correct  drafting,  such 
as  expressed  by  him  in  the  \vords  I  have  just  read,  I  do  not  under- 
stand, unless  he  was  lead  away  by  the  persuasiveness  and  eloquence 
of  the  chairman  of  the  committee.  Mr.  Chairman,  I  hesitate  to 
point  out  the  defects  in  this  proposed  amendment. 

Mr.  Jesse  Johnson  —  I  hope  you  will. 

Mr.  Hotchkiss  —  Because  where  there  are  so  many  defects,  sir,  it 
would  appear  almost  invidious  to  select  any  one  for  criticism.  The 
time  of  this  Convention  is  too  valuable  to  go  through  this  line  by 
line  and  point  out  what  strikes  me  as  most  obvious  and  serious 
defects  in  its  form  and  in  its  substance.  The  question  was  asked 
by  the  chairman  of  the  Cities  Committee,  why  did  not  the  minority 
of  this  committee  propose  something  better  if  they  did  not  agree  to 
this?  Mr.  Chairman,  that  was  quite  unnecessary.  Where  the 
minority  object  to  this  upon  principle  we  could  propose  nothing 
which  would  remedy  its  defects.  Where  we  agree  with  it  in  prin- 
ciple, it  was  simply  a  question  of  phraseology;  phraseology  which  I 
trust  we  can  agree  upon,  if  the  Cities  Committee,  as  I  sincerely  hope 
it  will,  shall  have  an  opportunity  to  reconcile  their  views  upon 
this  subject.  But,  Mr.  Chairman,  I  will  suggest  one  of  the  points 
upon  which  I  personally  agree  with  this  measure  in  addition  to  that 
of  the  principle  of  home  rule.  Although  I  was  decidedly  adverse  to 
the  proposition  when  it  was  first  suggested,  I  now  believe  that  the 
idea  of  giving  to  the  Governor  the  power  to  remove  the  head  of  the 
police  in  any  city  is  a  proper  thing  to  do.  But  I  believe  it  to  be 
wholly  improper  to  provide  as  this  proposed  measure  does  provide, 
that  the  original  power  to  appoint  the  head  of  the  police  force  shall 
rest  only  in  the  mayor,  or  the  mayor  with  the  consent  of  the  com- 
mon council.  There  is  no  necessity  for  that.  It  is  legislative;  it 
is  inadvisable.  If  the  Governor  has  reserved  to  him  the  power  to 
remove  the  head  of  the  police,  and,  if,  as  suggested  by  the  President 
of  this  Convention  yesterday,  the  power  of  appointment  or  removal 


August  8.]  CONSTITUTIONAL  CONVENTION.  187 

is  lodged  in  him,  such  appointment  to  be  for  the  unexpired  term  of 
the  officer  removed,  or  until  the  next  election,  I  think  it  would  be 
better  than  to  make  it  until. the  end  of  the  mayor's  term  of  office. 
Such  a  measure  would  receive  my  hearty  concurrence.  There  is  no 
need  for  going  further. 

Turning  to  this  fifth  section,  Mr.  Chairman,  which  contains  the 
provision  by  which  no  law  shall  be  passed  conferring  the  power  to 
appoint  the  head  of  the  police  force  of  any  city  on  any  city  officer 
other  than  the  mayor,  I  am  not  certain 

Mr.  Jesse  Johnson  —  Any  city  except  the  mayor,  if  you  will  read 
there. 

Mr.  Hotchkiss  —  It  is  my  conjecture  that  this  provision  means 
Buffalo.  In  other  words,  this  Convention  is  asked  to  legislate  with 
respect  to  the  peculiar  and  unusual,  and,  I  trust,  never  to  be  repeated, 
state  of  affairs,  that  has  recently  existed  in  the  city  of  Buffalo.  It 
might  be  expressed  in  these  words:  "The  Legislature  is  hereafter 
and  forever  warned  against  monkeying  with  the  affairs  of  Buffalo." 
(Laughter.)  That  simple  legislative  provision  incorporated  into  the 
Constitution  of  the  State  would  do  away  with  the  necessity  for  sec- 
tion 5,  and  it  would  also  do  away  with  the  necessity  for  all  of 
section  6,  by  which  an  election  board  is  to  be  created  for  all  cities 
(with  special  application  to  the  city  of  Buffalo).  What  an  excellent 
precedent  for  lexicographers  in  the  free  and  easy  use  of  our  lan- 
guage would  this  Convention  establish  if  they  would  insert  here  so 
graphic  and  expressive  a  word  as  "  monkeying."  Mark  Twain 
proposed  to  rear  a  column  to  the  memory  of  Adam.  We  have  done 
nothing  for  our  Simian  ancestors,  and  associating  them  in  our 
Constitution  with  Buffalo  would  give  them  a  monument  more 
enduring  than  brass,  and  afford  that  city  a  distinction  which  it 
might  never  otherwise  achieve. 

Mr.  Chairman,  let  me  suggest  to  you  —  not  all,  because  they  are 
legion  —  but  just  one  of  the  objections  to  this  State  election  board. 
We  are  to  have,  if  this  measure  is  adopted,  majority  and  minority 
representation  in  all  election  boards  and  "officers"  of  cities.  I 
assume  that  that  is  a  misprint.  I  assume  that  it  means  "offices," 
but  it  don't  say  so.  But  minority  and  majority  representation ;  that 
is,  the  bi-partisan  fad,  as  applied  to  administrative  boards;  and, 
although  the  chairman  of  the  Cities  Committee,  in  justifying  the 
proposed  amendment  allowing  minority  representation  in  the  legis- 
lative councils  of  cities,  says  that  the  committee  is  opposed  to 
minority  representation  in  mere  administrative  boards,  we  find 
nearly  one  whole  page  of  his  article  given  up  to  the  attempt  to 
interject  into  the  Constitution  of  this  State  a  principle  which  is 


l88  REVISED  RECORD.  [Wednesday, 

reprehended  by  the  report  of  which  he  is  the  first  signer.  But  look 
at  it.  If  minority  and  majority  representation  means  anything,  it 
means  that  every  party  nominating  a  ticket  shall  have  a  representa- 
tive upon  all  election  boards.  Now,  in  New  York,  we  have  many 
Democrats,  some  Republicans,  a  few  Socialists,  once  in  a  while  a 
Prohibitionist  and  always  enough  of  other  classes  to  get  together 
and  hold  what  they  are  pleased  to  call  a  convention,  although  on 
the  part  of  our  Republican  friends  the  industry  has  usually  been  a 
somewhat  harmless  one.  What  new  parties  will  come  into  the  field 
I  cannot  say,  but  it  is  certainly  reasonable  to  suppose  that  some 
other  party  will  spring  up  at  no  distant  day.  Now,  as  we  have 
twelve  hundred  election  districts  in  the  city  of  New  York,  it  means 
that  the  State  board  shall  have  the  appointment  of  at  least  forty- 
eight  hundred  individuals  to  act  upon  each  election  that  occurs 
there.  Brooklyn,  as  I  understand,  has  about  800  election  districts. 
I  think  there  are  about  five  or  six  thousand  (when  we  get  into  such 
numbers  it  does  not  make  much  difference),  say  about  five  thousand 
election  districts  in  the  State. 

Mr.  Johnson  —  Will  the  gentleman  allow  me? 
Mr.  Hotchkiss  —  Certainly. 

Mr.  Johnson  —  As  I  understand  the  provision,  it  is  that  the 
State  election  commission,  if  authorized,  may  have  the  power  given 
them  to  appoint  the  city  election  commission,  who  will  probably 
be  two  or  four,  and  on  them  as  officers  of  the  city  shall  devolve  the 
power  of  appointment  of  the  officers  for  each  election. 

Mr.  Hotchkiss  —  If  that  be  so,  Mr.  Chairman 

Mr.  Johnson  —  Is  it  not  so? 

Mr.  Hotchkiss  —  If  that  be  so,  I  sympathize  with  the  gentleman 
in  his  inability  to  express  himself  clearly.  Although  this  provision 
was  before  the  Cities  Committee  for  a  number  of  days,  and  although 
the  time  of  the  Convention  was  taken  up  (and  properly  so)  by  the 
chairman  of  the  committee  for  two  hours  yesterday,  he  has  not 
heretofore  so  explained  that  section.  I  do  not  read  the  section  so. 
I  did  not  read  it  so  during  the  many  times  that  I  did  read  it  in 
committee.  I  have  never  before  heard  anyone  suggest  such  an 
interpretation  for  it.  If  that  is  the  intention  of  the  committee,  it 
is  certainly  to  be  regretted  that  they  have  not  expressed  themselves 
in  clearer  language. 

Mr.  Johnson  —  Won't  you  read  the  section? 
Mr.  Hotchkiss  —  Mr.  Chairman,  another  objection  which  I  make 
to  this  measure  lies  in  the  limited,  and,  in  my  opinion,  improperly 


August  8.]  CONSTITUTIONAL  CONVENTION.  189 

exclusive  interpretation  which  it  puts  upon  municipal  purposes. 
It  defines  in  section  3,  all  the  subjects  they  would  allow  the  local 
legislatures  which  they  propose  to  erect,  to  act  upon.  They  include, 
among  other  things,  "fire,"  although  they  express  it  in  language 
which  has  never  before  met  my  eyes  in  any  public  or  private  instru- 
ment: "City  apparatus  and  force  for  preventing  and  extinguishing 
fires."  I  presume  they  mean  "  fire  department."  But  it  excludes 
police  and  charities  and  corrections. 

Mr.  Becker  —  And  education. 

Mr.  Hotchkiss  —  I  do  not  undertake  to  cite  all  that  is  improperly 
excluded  from  the  provisions  of  this  proposed  amendment,  because 
that  is  without  the  domain  of  reason.  There  is  in  my  judgment 
no  good  reason  why  the  police  department  should  not  be  under  the 
control,  subject  to  wise  limitations  reserved  to  the  Legislature. 
There  is  no  reason  why  the  police  department  should  be  regulated 
from  Albany  and  the  fire  department  from  New  York  city.  If  I  am 
a  resident  of  Indiana,  owning  and  paying  taxes  upon  property  in  the 
city  of  New  York,  or  if  I,  a  resident  of  the  city  of  Albany,  am  simi- 
larly situated,  I  have  as  great  an  interest  in  seeing  to  it  that  there 
is  a  proper  fire  department  efficiently  maintained  in  the  city,  as  I 
am  in  seeing  to  it  that  life  is  safe.  Fire  is  only  a  means  by  which 
property  is  endangered.  Larceny  is  another  and  only  another  form 
of  peril.  If  we  have  to  pay  for  the  police,  if  from  the  pockets  of  our 
citizens  comes  the  compensation  which  they  receive,  if  we,  in  New 
York,  are  most  directly  interested,  as  we  are,  in  the  observance  of 
order,  in  our  city  and  in  the  maintenance  of  an  efficient  police 
department,  why  should  we  not  have  the  right  to  say  what  that 
police  force  shall  wear  in  the  way  of  uniform,  under  what  circum- 
stances there  shall  be  promotion,  what  compensation  they  shall 
receive?  Why  should  it  be  reserved  to  the  State  to  legislate  upon 
such  matters  of  purely  local  concern  in  that  respect?  This,  so  long 
as  the  State  retains  a  proper  measure  of  control,  to  be  exercised 
under  circumstances  of  great  emergency  in  which  the  interests  of 
the  people  of  the  State  may  be  jeopardized.  To  reserve  that  control 
it  is  simply  necessary  to  give  to  the  Governor,  as  I  would  be  con- 
tent to  give  him,  power  to  remove  the  head  of  the  police  depart- 
ment in  any  city  when  it  is  discovered  that  the  laws  are  not  properly 
administered.  Substantially  the  same  suggestions  apply  to  chari- 
ties and  correction. 

Mr.  Jesse  Johnson  —  It  is  not  a  city  department. 
Mr.  Hotchkiss  —  Under  the  close  interpretation  given   by  the 
Court  of  Appeals,  I  grant  you,  that  officers  of  the  police  and  cor- 


190  REVISED  RECORD.  [Wednesday, 

rection  departments  are  not  municipal  agents;  but,  sir,  the  Court  of 
Appeals  has  decided  that  the  fire  department  is  not  in  this  sense 
municipal. 

Mr.  Johnson  —  May  I  interrupt  you  again?     The  question  of 
charities  is  a  county  matter  and  not  a  city  matter. 

Mr.  Hotchkiss  —  But  what  becomes  of  us 'in  New  York  where 
we  have  no  county?  We  raise  and  distribute  there  to  relieve  the 
poor  and  distressed  in  the  city  of  New  York  millions  of  dollars. 
We  have  millions  of  dollars  invested  in  expensive  sites,  expensive 
plants  and  expensive  buildings  and  all  the  apparatus  necessary  for 
the  care  of  the  unfortunate  within  our  gates.  We,  in  the  city  of 
New  York,  pay  for  this.  Why  should  we  not  have  the  right  to  say 
how  that  money  shall  be  distributed,  how  the  affairs  relating 
purely  to  our  local  charitable  institutions  shall  be  administered? 
Still,  if  this  measure  is  adopted,  this  will  all  be  taken  away,  and  the 
suggestion  of  the  gentleman  from  Kings  only  reminds  me  that  we 
will  then  occupy  the  conspicuous  position  of  being  the  only  city 
in  the  State  whose  borders  are  equivalent  to  the  borders  of  the 
county;  hence  we  shall  not  have  the  right  to  distribute  the  moneys 
which  we  raise  for  this  purpose.  For  substantially  the  same  rea- 
sons I  think  the  committee  errs  in  failing  to  include  corrections 
among  its  definition  of  municipal  purposes.  With  us  we  have  a 
bureau  of  charities  and  corrections  combined.  They  have  been 
administered  together  for  many  years  and  have  been  administered 
certainly  with  as  strict  an  observance  of  the  law  as  in  any  other 
county  or  city  of  the  State  to  my  knowledge.  I  know  of  no  city 
in  the  State  where  petty  criminals  are  punished  or  more  certain 
of  conviction  than  they  are  in  the  city  of  New  York. 

Mr.  Chairman,  as  I  have  said,  it  is  not  my  object  to  point  out  all 
of  the  objections  which  can  reasonably  and  in  no  captious  spirit, 
without  stopping  to  quibble  over  mere  phraseology,  be  raised  to 
this  measure.  I  have  simply  sought  here,  to  justify  the  minority  of 
this  committee  so  far  as  I  was  moved  to  become  a  member  of  that 
minority,  in  withholding  their  consenT  to  the  measure  proposed. 
But  I  should  deem  it  a  great  misfortune  if  the  opportunity  were  not 
given  to  the  committee  to  frame  a  proper  measure  for  the  purpose 
of  giving  to  the  people  of  this  State  the  opportunity  to  apply  the 
principle  of  home  rule  to  such  of  their  cities  as  may  wish  to  aban- 
don or  modify  their  present  charters.  But  I  trust  that  the  ultimate 
action  of  this  Convention  will  be  to  kill  this  measure  deader  than 
Caesar's  ghost,  because  it  is  impossible  to  revise  it.  You  cannot 
make  anything  good  out  of  that  phraseology.  As  I  have  suggested, 


August  8.J  CONSTITUTIONAL  CONVENTION.  191 

it  runs  riot  with  every  rule  of  constitutional  drafting.  Rather  allow 
us,  or  allow  the  Convention  itself,  an  opportunity  to  frame  some- 
thing not  in  the  words,  but  after  it  as  an  example  of  a  measure 
which  is,  to  my  mind,  substantially  correct  in  principle  and  is  a 
proper  form  of  constitutional  drafting,  namely,  introductory  No. 
205,  introduced  by  Mr.  C.  H.  Lewis,  and  which  comes  here  'from 
the  "  Committee  of  Twenty-one  "  of  New  York.  I  would  take  that 
and  amend  it.  I  would  not  take  it  as  it  is,  but  I  think  in  a  very  short 
time,  if  the  friends  of  home  rule  would  be  content  to  act  and  not  to 
talk,  if  they  would  be  content  to  come  together  and  express  in  a 
very  few  simple  words,  the  principles  that  they  want  this  Convention 
to  adopt  and  submit  to  the  people,  I  am  persuaded  that  in  two 
hours'  time  we  could  frame  an  amendment  which  would  be  satisfac- 
tory to  this  Convention,  or  at  least  a  majority  of  it,  for  we  do  not 
expect  that  there  will  be  unanimity  upon  any  question  upon  which 
that  may  be  so  properly  a  difference  of  opinion  as  upon  this. 

Mr.  Chipp  —  Mr.  Chairman,  I  move  that  the  committee  do  now 
rise,  report  progress  and  ask  leave  to  sit  again. 

Mr.  Mulqueen  —  Mr.  Chairman,  I  ask  the  gentleman  to  withdraw 
his  motion  to  enable  me  to  offer  some  amendments. 

The  motion  of  Mr.  Chipp  being  withdrawn  for  that  purpose,  Mr. 
Mulqueen  offered  certain  amendments  which  were  handed  to  the 
Secretary. 

The  Chairman  —  The  question  is  still  upon  Mr.  Dean's  motion 
to  substitute  proposed  constitutional  amendment  No.  22,  for  the 
proposition  reported  by  the  Committee  on  Cities. 

Mr.  Chipp  —  Mr.  Chairman,  I  renew  my  motion. 

The  Chairman  put  the  question  on  the  motion  of  Mr.  Chipp  that 
the  committee  rise,  report  progress,  and  ask  leave  to  sit  again,  and  it 
was  determined  in  the  affirmative.  Whereupon  the  committee  arose 
and  the  President  resumed  the  chair. 

Mr.  I.  S.  Johnson  —  Mr.  President,  the  Committee  of  the  Whole 
has  had  under  consideration  the  proposed  constitutional  amend- 
ment (printed  No.  376),  entitled  "  Proposed  constitutional  amend- 
ment to  provide  home  rule  for  cities/'  have  made  some  progress  in 
the  same,  but  not  having  gone  through  therewith  have  instructed 
me,  their  chairman,  to  report  that  fact  to  the  Convention  and  ask 
leave  to  sit  again. 

The  President  put  the  question  on  agreeing  to  the  report  of  the 
Committee  of  the  Whole,  and  it  was  determined  in  the  affirmative. 


192  REVISED  RECORD.  [Wednesday, 

Mr.  Cookinham  —  Mr.  President,  I  move  that  the  amendments 
offered  and  the  substitute,  not  already  printed,  be  printed  and  laid 
upon  the  tables  of  the  members. 

The  President  put  the  question  on  the  motion  of  Mr.  Cookinham, 
and  it  was  determined  in  the  affirmative. 

Mr.  Alvord  —  Mr.  President,  as  this  is  a  very  important  matter, 
and  is  in  the  way  of  other  business  of  this  Convention 
I  move,  sir,  that  it  be  made  a  special  order  for  to-morrow  morning, 
immediately  after  the  reading  of  the  Journal. 

The  President  put  the  question  on  the  motion  of  Mr.  Alvord,  and 
it  was  determined  in  the  affirmative. 

The  Secretary  read  notices  of  meetings  of  committees. 

Mr.  M.  E.  Lewis  —  Mr.  President,  I  move  that  the  Convention 
do  now  take  a  recess  until  8  o'clock  this  evening. 

The  President  put  the  question  on  the  motion  of  Mr.  Lewis,  and 
it  was  determined  in  the  affirmative,  whereupon  a  recess  was  taken 
until  the  evening  at  8  o'clock. 


EVENING    SESSION. 
Wednesday  Evening,  August  8,  1894. 

The  Constitutional  Convention  of  the  State  of  New  York  met 
in  the  Assembly  Chamber  in  the  Capitol  at  Albany,  August  8,  1894, 
at  8  P.  M. 

President  Choate  called  the  Convention  to  order. 

The  President  —  The  question  before  the  Convention  to-night  is 
the  special  order,  whether  the  Convention  will  agree  to  the  adverse 
report  of  the  Committee  on  Suffrage  on  the  amendment  introduced 
by  Mr.  Tucker  (introductory  No.  194),  the  report  being  adverse  to 
the  amendment. 

Mr.  Lincoln  —  Mr.  President,  I  understand  that  the  amendment 
was  amended  to-day  by  the  Suffrage  Committee.  I  suggest  that 
the  amendment  as  amended  be  read. 

The  President  —  The  Secretary  will  read  the  amendment  as  it 
was  returned  to-day  by  the  Suffrage  Committee,  amended 

The  Secretary  read  the  proposed  amendment  as  follows: 


August  8.]  CONSTITUTIONAL  CONVENTION.  193 

Proposed  constitutional  amendment  to  amend  article  two  of  the 
Constitution,  so  as  to  separately  submit  to  the  electors  of  this 
State  the  question  of  woman  suffrage. 

The  Delegates  of  the  People  of  the  State  of  New  York,  in  Convention 
assembled,  do  propose  as  follows: 

Section  one  of  article  two  of  the  Constitution  is  hereby  amended 
by  adding  the  following  words  at  the  end  thereof: 

But  at  the  general  election  next  succeeding  the  general  election 
at  which  this  Constitution  shall  be  submitted  to  the  electors  of  this 
State  for  adoption  or  rejection,  the  question,  "  shall  the  word 
'  male '  be  stricken  from  article  second,  section  one  of  the  Constitu- 
tion, and  cease  to  be  a  part  thereof? "  shall  be  separately  submitted 
to,  and  be  decided  by,  the  said  electors;  and  in  case  a  majority  of  the 
electors,  voting  at  such  election  on  that  question,  shall  decide  in 
favor  of  such  striking  out,  then,  and  not  otherwise,  the  said  word 
shall  be  stricken  from  this  section,  and  cease  to  be  a  part  thereof; 
and  in  that  event  every  female  citizen  shall  thereafter  be  entitled  to 
vote,  at  all  elections  held  in  this  State,  upon  the  same  qualifications 
and  conditions  as  are  in  this  section  prescribed  as  to  male  citizens. 
It  shall  be  the  duty  of  the  Governor,  by  his  proclamation,  to  make 
known  the  result  of  such  election,  as  to  the  question  so  separately 
submitted,  immediately  upon  the  completion  of  the  canvass  by  the 
State  canvassers. 

Mr.  Lauterbach  —  Mr.  President,  the  task  of  arguing  that  the 
report  of  the  committee  be  not  sustained,  and  so  accomplishing  as 
the  result  of  to-night's  debate  the  ending  of  the  matter  for  the  con- 
sideration of  the  Convention,  has  been  entrusted  to  me,  owing  to 
the  physical  inability  of  Mr.  Tucker  to  assume  that  duty  in  respect 
of  his  own  amendment.  If  the  policy  that  actuated  the  Legislature 
in  1892  and  1893  had  been  carried  out  to  its  legitimate  conclusion, 
I  would  be  addressing  this  evening  not  a  body  composed  of  these 
male  delegates  only,  but  as  there  was  intended  to  be,  and  should 
have  been,  a  number  of  women  delegates  seated  in  this  Convention. 
For  so  far  has  the  progress  of  events  proceeded  that  without 
compulsion,  almost  without  solicitation,  the  Legislature  of  1892, 
recognizing  the  changed  condition  of  affairs  that  had  supervened 
since  1867,  put  upon  the  statute  book  a  provision  that  the  delegates 
to  the  Constitutional  Convention  of  1894,  might  be  both  men  and 
women,  and  when  the  statute  was  changed  from  its  condition  in 
1892,  to  that  of  1893,  so  as  to  comply  with  what  were  assumed  to  be 
political  necessities,  although  every  line  of  the  statute  of  1892  was 
13 


194  REVISED  RECORD.  [Wednesday, 

carefully  scanned  and  many  changes  were  made,  yet  with  solemn 
deliberation  was  re-enacted  in  section  seven  of  the  statute  of  1893, 
under  which  we  are  all  here  assembled,  the  right  of  the  people  of  the 
Empire  State  to  send  women  to  the  floor  of  this  chamber. 
(Applause.)  And  it  is  to  a  Convention  called  together  under  such 
circumstances  and  in  an  age  that  betokens  such  a  spirit,  that  I  am 
to  address  myself,  asking  at  this  time  simply  your  non-assent  to  the 
report  of  the  Suffrage  Committee  so  that  the  important  question 
which  it  involves  may  be  properly  and  fully  discussed  in  the  Con- 
vention itself. 

Why  the  spirit  that  breathed  through  the  statute  did  not  take 
form  in  the  selection  of  delegates  to  the  Convention  I  know  not, 
but  would  that  it  had,  and  that  some  woman  champion  of  woman's 
rights,  of  the  rights  of  mankind  generally,  of  the  rights 
of  womanhood,  as  well  as  the  rights  of  manhood,  could 
have  stood  here  to  address  you;  and  the  address  then 
would  have  been,  as  the  addresses  of  all  the  women  have  been, 
brief,  clear,  terse,  cogent,  unanswerable.  (Applause.)  I  shall 
make  but  a  poor  substitute  for  any  one  of  the  noble  women  who 
stood  before  the  Suffrage  Committee  and  before  a  great  number  of 
the  other  delegates  and  addressed  you  upon  the  theory  and  the 
science  which  lie  behind  these  petitions,  and  upon  every  practical 
feature  connected  therewith.  And  when  they  had  finished,  and  the 
representative  emissaries  of  those  who  were  opposed  to  the  prayer 
of  their  petition  rose  and  revamped  the  exploded  doctrines  of  Gold- 
win  Smith  and  asserted  that  we  are  living  in  an  age  of  force  and  not 
in  an  age  of  intellect,  every  member  of  the  Convention  with 
unanimity,  whether  champion  for  the  cause  or  opponent  of  the 
cause,  said  with  one  acclaim,  "  If  the  force  of  argument  is  to  be  con- 
sidered, if  sound  reasoning  is  to  govern,  if  the  modesty,  the  candor, 
the  ability,  the  straightforwardness  of  the  women  upon  the  one 
hand,  and  the  bold,  unsupported  assertions  of  the  men  who  knew 
nothing  to  say  in  respect  to  this  matter  except  the  upholding  of 
force  and  portrayal  of  womanhood  only  in  its  degraded  aspects  are 
to  determine  this  question,  the  woman  should  prevail."  If  this  Con- 
vention could  have  determined  the  matter  the  night  after  the  nine- 
teen women  gathered  upon  that  platform  and  one  after  another,  in 
speeches  each  of  only  five  minutes  in  duration,  had  fashioned  for 
this  Convention  a  diadem  composed  of  unexampled  gems  of  elo- 
quence, of  pathos,  of  argument  and  of  reasoning,  following  as  they 
did  the  sound  scientific  discussion  of  the  subject  by  Dr.  Mary 
Putnam  Jacobi,  and  the  historical  disquisition  of  that  noble  cham- 
pion of  every  noble  cause,  that  self-sacrificing  woman  whose  sands 


August  8.]  CONSTITUTIONAL  CONVENTION.  195 

of  life  have  nearly  run  out  in  her  devotion  to  everything  that  has 
savored  of  patriotism,  love  of  country,  Americanism,  Susan  B. 
Anthony,  it  would  have  resolved  that  the  word  male  should  then 
and  there  have  been  stricken  from  the  Constitution.  (Applause.) 
Coming  as  they  did  to  us  not  from  the  highest  walks  of  life  only,  but 
representing  every  phase  of  womanly  activity,  the  farmer's  wife, 
the  artisan's  wife,  the  college  graduate,  the  working  woman  from 
every  condition  and  from  every  direction,  they  came  and  asked, 
"  For  what  reason  do  you  deprive  us  of  the  ballot,  of  the  one 
emblem  of  citizenship,  that  which  is  the  proudest  possession  that 
any  American  citizen  can  possess,  the  one  thing  that  not  one  of 
you  men  would  abdicate  or  abandon?  "  and  we  could  make  no 
answer.  They  said  to  us,  take  from  you  your  fortunes,  cast  your 
lives  in  far  less  pleasant  places,  you  agree  with  us,  men  of  the  Con- 
stitutional Convention,  that  you  would  sooner  lay  down  all  that  you 
have  acquired,  that  you  would  sooner  give  up  all  the  honors  that 
have  come  to  you,  that  you  would  rather  abandon  any  proud  posi- 
tion that  is  yours,  than  be  deprived  of  the  right  to  vote  or  have 
curtailed  in  the  slightest  degree  your  right  to  exercise  the  elective 
franchise,  the  symbol  of  power,  the  weapon  of  defense,  the  instru- 
ment of  self-protection,  the  only  thing  that  makes  American  citizen- 
ship worth  having.  We  are,  they  said,  members  of  this  community; 
we  are  citizens  of  this  State,  entitled  to  all  the  privileges,  as  we  are 
subject  to  all  the  burdens  that  citizenship  implies  or  that  it  should 
imply.  We  are,  some  of  us,  taxpayers,  we  are  all  of  us  loyal  to  our 
flag  and  our  country;  why  this  demarcation  against  us?  Why  this 
differentiation  that  deprives  us  of  that  which  seems  to  be  synony- 
mous with  citizenship  itself?  Where  have  we  erred?  What  sin 
have  we  committed?  What  fault  has  been  perpetrated?  Have  we 
the  intelligence  to  cast  our  vote?  Do  you  doubt  it?  Look 
throughout  all  womanhood,  grade  for  grade,  class  for  class,  from 
the  top  to  the  bottom.  Does  not  every  woman  in  every  rank  of  life 
stand  at  least  the  equal  in  general  capacity  and  intelligence  of  her 
male  associates  in  the  same  rank  of  life?  Why,  then,  this  depriva- 
tion?" And  there  was  no  answer,  and  there  can  be  no  answer. 
I  beg  of  you  that,  in  determining  this  question,  you  pay  heed  rather 
to  the  record  which  these  women  have  made  here,  to  their  own 
expressions,  their  own  testimony,  than  to  my  inadequate  presenta- 
tion of  the  case,  or  to  that  of  any  champion  of  their  cause  outside 
of  their  own  ranks.  Another  thing  I  shall  ask  on  their  behalf;  it 
is  for  the  exercise  of  the  unpledged,  unbiased  individual  judgment 
of  every  member  of  this  Convention.  1  ask  you  to  remember  your 
oaths  honestly  and  fairly  to  determine  this  as  every  other  question 


196  REVISED  RECORD.  [Wednesday, 

in  this  Convention,  and,  if  the  echo  still  rings  in  your  ears  of  solicita- 
tion to  adjudicate  adversely  to  the  petitioners  on  the  ground  of 
party  policy,  or  on  the  ground  of  a  cowardly  expediency,  or  because 
the  success  of  party  schemes  or  selfish  aims  would  be  put  at 
jeopardy,  I  ask  you  to  free  yourselves  from  these  influences  and 
that  your  minds  shall,  at  least,  be  as  blank  paper,  so  as  to  be 
receptive  of  the  merits  of  the  arguments  that  have  been  advanced, 
and  that  may  be  advanced,  in  favor  of  the  simple  proposition  which 
you  are  asked  to  determine.  And  I  ask  every  man,  whatever  may 
have  been  his  pledges,  actual  or  implied,  whatever  his  idea  of  party 
necessities,  or  party  exigencies  may  be,  that  on  this  night,  at  least, 
for  this  nonce,  it  is  his  duty  to  act  as  a  delegate,  as  an  American, 
as  a  human  being  called  upon  to  do  justice  to  his  fellow-beings 
and  fellow-citizens,  rather  than  to  be  guided  solely  by  his  notions 
of  party  loyalty,  party  fealty.  (Applause.)  If  I  shall  accomplish 
nothing  else,  I  know  that  I  have  accomplished  that.  I  know, 
whether  it  be  Democratic  policy  or  Republican  policy  to  vote  this 
measure  down,  that  if  you  feel  that  the  demand  of  these  suppliants 
is  one  which,  in  justice,  should  be  complied  with,  that  all  the 
dictates  of  those  who  may  regulate  party  machinery,  or  who  may 
regulate  the  affairs  and  concerns  of  the  Convention  will  be  complied 
with,  if  the  rights  of  your  mothers,  your  wives,  your  daughters,  your 
sisters,  are  really  ignored,  if  it  be  shown  that  their  interests  are 
injuriously  and  unjustly  affected,  you  will  act  in  their  behalf,  and 
in  behalf  of  womankind  at  large,  irrespective  of  any  party  pro- 
clivity or  any  party  expediency.  Impartial  suffrage;  should  it 
not  be  impartial?  The  demand,  therefore,  rang  throughout  the 
State  when  it  was  suggested  that  this  Convention  was  about  to  be 
called;  and  it  was  not  left  to  be  discussed  only  by  the  170  men 
sent  to  a  convention.  Hundreds  of  thousands  of  men  and  women 
throughout  the  State  declared  their  views  in  respect  of  this  great 
question.  Every  hamlet,  every  town,  every  nook  and  corner 
throughout  the  State  became  busied  with  the  discussion  of  this 
matter.  Petitions  for  granting  this  inestimable  right  were  rapidly 
subscribed,  circulated,  not  in  the  dark  hours  of  the  night,  and 
kept  back  in  order  to  be  suddenly  precipitated  upon  the  Convention 
at  its  session,  but  openly,  notoriously,  so  that  the  adversaries  of  the 
proposition,  if  any  there  were  or  could  be,  should  know  that  such 
petitions  were  being  circulated. 

The  petitions  were  gathered  together.  None  but  adults  signed 
them.  None  but  those  qualified  to  vote  under  existing  law  or  who 
should  be  qualified  to  vote,  if  existing  law  were  existing  justice, 
approved  them.  You  were  petitioned  to  submit  this  question  to 


August  8.]  CONSTITUTIONAL  CONVENTION.  197 

the  fiat  of  the  people,  you  were  petitioned,  that  while  having  the 
power  to  prevent  this  submission,  you  would  be  generous  by  its 
non-exercise.  Six  hundred  thousand  petitioners  pray  that  your 
action  shall  be  such  that  the  million  and  a  half  electors  of  the  State 
of  New  York  shall  be  permitted  to  pass  upon  this  question.  The 
orange-ribboned  packages  came  from  every  quarter,  and  came  day 
by  day,  emanating,  not  only  from  the  Thirty-second  District,  whose 
population  was  almost  unanimous  in  favor  of  this  measure,  not 
limited  to  the  country  hamlet,  not  confined  to  any  one  section  of 
the  State,  but  from  every  quarter  and  from  every  point  of  the  com- 
pass, poured  in  upon  this  Convention  this  mass  of  petitions,  to  an 
extent  probably  never  to  be  surpassed.  Following  these  came  the 
petitions  of  some  fifteen  thousand  individuals  in  antagonism  to  the 
measure.  It  is  difficult  to  conceive  that  any  women  should  have 
been  found  to  subscribe  to  such  anti-suffrage  petitions.  But  we 
know  of  the  women.  They  are  few.  We  know  that  they  exist. 
They  are  probably  the  women  of  whom  it  was  said,  when  the 
sparse  petitions  were  presented:  "They  are  more  beautiful,  more 
lovely,  more  elegant  and  exquisite  than  the  women  represented 
by  the  other  petition,"  and  these  lovely  exquisites,  gathering  to 
themselves  some  five  or  six  thousand  men,  did  secure  the  subscrip- 
tions of  a  few  thousand  women  so  as  to  form  a  petition  of  some 
15,000  in  all,  and  that  by  the  expenditure  of  money,  after  the  argu- 
ment of  attorneys,  after  every  avenue  of  society  influence  had  been 
exerted,  after  everything  that  aristocratic  ingenuity  could  devise 
had  been  fully  exhausted.  They  were  the  names  of  these  who  could 
not  bear  political  affiliation  with  the  laboring  women  or  the  domes- 
tic at  service,  their  chief  protest  being:  "Shall  we  contaminate  our 
skirts  by  going  to  the  same  poll  with  our  own  cook  and  our  own 
chambermaid?"  There  is  fellowship,  a  bon  homnie,  a  leveling  of 
all  men,  which  the  ballot  has  caused  among  men;  and  when  the 
ballot  is  given  to  the  women  such  objections  will  be  no  longer 
made,  even  by  the  meanest  of  them.  There  will  be  a  leveling  of 
those  who  are  too  high  to  meet  those  in  their  upward  course,  who 
stand  too  low  to-day.  The  exercise  of  the  elective  franchise  will 
level,  equalize  and  arrange,  and  there  will  be  no  further  protest  by 
the  aristocratic  dame  against  meeting  women  who  earn  their  daily 
bread,  and  who  now  need  only  the  ballot  to  enable  them  to  earn 
it  with  the  same  calm  interest  and  under  the  same  advantageous 
circumstances  as  the  laboring  men  of  the  State  of  New  York,  who 
stand  politically  the  peers  of  all  men. 

The  whole  community  became  as  much  interested  in  the  prayer 
of  the  pro-suffrage  petition  as  did  we  and  in  casting  your  ballot 


198  REVISED  RECORD.  [Wednesday, 

upon  this  subject,  remember  that  fact,  and  bear  in  mind  that  you 
are  asked  to  submit  to  the  people  the  determination  of  a  subject 
with  which  the  people  are  just  as  familiar  as  you.  There  is  no  man 
or  woman  that  walks  the  streets  that  does  not  know  every  element 
that  pertains  to  this  question  of  woman  suffrage,  as  well  as  the 
President  of  this  Convention  understands  them;  and  this  one 
question  so  thoroughly  understood  by  every  individual  needs  no 
sanction  of  any  Constitutional  Convention.  It  needs  no  expert 
knowledge  on  the  part  of  members  who  are  here  gathered  together, 
as  is  the  case  with  questions  involving  a  system  of  judicature,  or 
those  involving  apportionment,  or  any  of  the  many  vexed  questions 
which  we  must  determine,  which  we  must  separately  consider,  upon 
which  we  must  first  set  our  own  fiat  before  submission  to  popular 
vote.  This  is  a  simple  problem,  the  solution  of  which  does  not 
require  your  intervention.  It  may  be  asked,  why  leave  this 
directly  to  the  vote  of  the  people  any  more  than  we  leave 'any  other 
subject  to  be  determined.  Because  this  one  subject,  sup- 
ported by  600,000  men  and  women,  mooted  and  discussed 
for  the  last  thirty  years  in  every  posible  phase  by  the  great- 
est orators  and  statesmen,  presented  to  the  community  in  every  way, 
is  as  well  understood  by  every  individual  in  the  community,  as  it  is 
by  the  members  of  the  Constitutional  Convention.  Whatever  may  be 
your  personal  opinion,  it  is  entitled  to  no  more  weight  than  that 
of  any  other  elector,  so  that  I  am  justified  in  asking  that  you  will 
permit  this  matter  to  go  to  the  people  to  be  voted  on. 

You  are  not  straining  your  consciences  or  violating  any  duty  if 
you  thus  permit  your  personal  predilections  to  be  thus  subordinated. 
We  are  rapidly  advancing  in  the  methods  to  be  sought  in  learning 
the  wishes  of  the  people.  We  are  getting  to  know  something 
of  the  referendum.  Who  thought  of  the  referendum  three  or  four 
years  ago?  No  one.  But  an  elevated  railway  project  creates  excite- 
ment in  the  city  of  New  York,  and  the  question  whether  the  munici- 
pality shall  give  of  its  funds  to  the  building  of  an  enterprise  of  that 
character  is  discussed.  The  people  of  the  city  of  New  York  under- 
stand this  question  as  well  as  the  Legislature,  and  better.  They 
asked  the  members  of  the  Legislature  of  the  State  of  New  York, 
not  to  determine  this  matter  for  themselves  either  affirmatively  or 
negatively,  but  to  leave  it  by  way  of  referendum  to  the  people 
themselves  for  determination.  The  demand  was  complied  with  and 
in  November,  when  your  Constitution  is  to  be  submitted  for 
approval  and  when  this  question  of  woman  suffrage,  as  I  hope 
sincerely  will  also  be  adjudicated,  the  referendum  will  have  done 
its  work  and  the  people  of  the  city  of  New  York  voting  directly, 


August  8.]  CONSTITUTIONAL  CONVENTION.  199 

ignoring  Assemblies  and  Senates,  ignoring  all  intermediary  legis- 
lative bodies,  will  vote  upon  a  question  which  they  will  understand 
as  well,  if  not  better,  than  the  people  who  are  their  representatives. 

That  is  what  you  are  asked  to  do.  You  are  importuned  to  take 
this  question  of  woman  suffrage  out  of  your  own  jurisdiction,  out 
of  your  power  to  destroy,  out  of  your  power  to  say  to  these  women, 
"we  will  afford  you  no  relief,  you  shall  remain  unheard  until  two 
successive  Legislatures  can  be  found  to  pass  upon  this  question 
before  the  people  shall  vote  thereon."  But  the  members  of  this 
Constitutional  Convention  will,  I  am  confident,  follow  the  sug- 
gestion of  Mr.  Tucker  and  leave  this  question  to  a  direct  vote  of 
the  people.  Is  there  anyone  who  will  feel  that  he  is  violating  his 
oath  of  office  by  so  doing;  if  a  moss-grown  prejudice  in  his  own 
mind  would  impel  him  next  November  to  vote  against 
the  proposition  itself  that  he  will  fail  to  do  complete  equity, 
justice,  by  permitting  other  people  equally  well  qualified  to 
vote  upon  the  subject  at  the  same  time?  Vote  as  you  please 
in  November.  I  know  how  everyone  will,  vote  when  once  the 
opportunity  is  afforded.  I  feel  that  no  member  of  this  Convention 
will  leave  his  house  on  the  morning  of  election,  leave  his  wife's  side 
and  the  side  of  his  daughter  and  see  their  faces  beaming  with  intel- 
ligence, will  have  heard  discussed  the  political  questions  of  the  day 
from  every  standpoint  with  a  thoroughness  and  efficiency  that  per- 
haps few  men  can  equal,  and  vote  otherwise  than  in  favor  of 
impartial  suffrage. 

But  that  is  not  the  question  here.  If  the  prejudice  does  exist,  if 
you  must  vote  against  it,  if  without  knowing  why,  because  no  man 
can  know  why,  you  shall  still  insist  upon  maintaining  your  own 
unfounded  prejudices  at  that  time,  do  it,  and  may  your  consciences 
not  smite  you  too  severely.  But  in  any  event,  give  these  women 
the  privilege  of  the  referendum.  You  say  that  the  majority  of  men 
are  against  it!  Let  them  so  proclaim.  I  believe  the  majority  of 
the  voting  men  of  the  State  of  New  York  are  in  its  favor.  Shall 
you  check  the  fair  expression  of  their  feelings?  Shall  you,  because 
you  have  the  technical  power  so  to  do,  so  vote  that  ninety  men 
here  shall  choke  off  the  expression  of  opinion  of  six  or  seven  hun- 
dred thousand  voters  at  the  polls  in  the  State  of  New  York  next 
November?  That  cannot  be. 

Now,  that  is  the  situation  in  which  this  matter  presents  itself. 
As  the  result  of  these  petitions  fifteen,  I  think,  separate  bills  floated 
to  the  Secretary's  desk  almost  before  the  petitions  were  laid  upon  it. 
Every  member  had  a  theory,  everyone  felt  that  some  justice  should 
be  accorded.  One  member  suggested  municipal  voting,  another 


200  REVISED  RECORD.  [Wednesday, 

school  voting,  a  third  that  the  subject  should  be  referred  to  the 
women  for  adjudication,  a  fourth  that  the  right  should  be  accorded 
tentatively  until  1905,  and  if  the  women  behaved  themselves  in  the 
meantime,  another  vote  should  be  taken  to  determine  whether  it 
was  to  be  continued.  The  methods  of  doing  this  thing  were  almost 
as  numerous  as  the  imagination  could  depict.  They  all  went  to  the 
Suffrage  Committee.  The  bold  and  manly  thing  to  have  done  was 
to  have  stood  right  by  the  proposition  to  strike  out  the  word 
"  male  "  from  section  i,  article  2,  and  go  bravely  and  squarely  before 
the  people  and  have  the  matter  flatly  and  unequivocally  adjudicated. 
But  this  the  committee  deemed  inadvisable;  it  was  a  body  of  gentle- 
men so  organized  as  to  give  the  most  patient  hearing  to  the  women, 
the  most  kind  and  courteous  treatment,  a  body  never  lacking  in  the 
most  polished  courtesy  toward  them,  permitting  them  to  have  their 
say,  and  apparently  to  make  their  legitimate  impressions,  and  then 
finally  to  dispose  of  them  and  their  grievances  as  the  Legislature  has 
done  again  and  again ;  inspire  them  with  hope  and  make  its  realiza- 
tion Dead  Sea  fruit.  You  have  seen  the  spectacle  that  has  been 
presented  in  the  Legislature.  You  have  seen  the  Assembly  pass 
woman  suffrage  affirmatively  and  the  Senate  turn  it  down,  and  you 
have  seen  the  Senate  pass  woman  suffrage  affirmatively  and  the 
House  turn  it  down.  You  have  seen  the  matter  usually  defeated 
by  sixty-four  votes,  when  sixty-five  were  requisite.  Men  have  been 
treacherous.  The  arguments  of  the  women  have  been  listened  to, 
but  the  power  that  the  men  had  has  not  even  been  squarely  and 
fairly  exercised,  and  for  years  and  years  they  should  have  blushed 
with  shame  as  this  farce,  this  outrage  upon  the  just  demands  of 
women,  was  being  perpetrated.  (Applause.)  There  are  those  in  this 
chamber  who  can  testify  to  the  truth  of  what  I  say.  There  are  those 
whose  vote  was  not  infrequently  given  upon  such  occasions  to 
"  jolly  the  women  along."  (Laughter.)  And  we  jollied  the  women 
along,  and  they  came,  we  received  them,  and  our  committee  lis- 
tened to  them  most  attentively.  Arguments  were  advanced,  and  no 
reasonable  request  that  could  be  made  but  that  was  at  once  com- 
plied with,  but  if  there  is  any  man  in  this  Convention  that  did  not 
know  within  forty-eight  hours  after  the  organization  of  the  com- 
mittee that  the  vote  would  be  thirteen  against  and  four  for  the 
women,  he  knows  less  of  the  inner  history  of  this  Convention  than 
he  should  know.  (Applause.) 

So  we  listened  and  we  did  not  pass  upon  the  section  that  strikes 
out  the  word  "  male."  We  have  great  parliamentarians  in  our  com- 
mittee, shrewd  men,  and  that  section  was  not  submitted,  but  we 
took  the  rest  of  them,  all  the  other  bills  that  were  there,  and  we 


August  8.]  CONSTITUTIONAL  CONVENTION.  201 

reported  them  adversely,  adversely,  adversely.  But  we  must  have  a 
discussion  of  this  subject.  Its  result  is,  of  course,  a  foregone  con- 
clusion, but  the  sham  will  be  maintained.  We  must  have  a  pre- 
tense of  discussion  before  this  well-organized  vote  in  opposi- 
tion to  the  claim  of  the  women  can  be  brought  to  a 
head,  and  can  be  placed  upon  the  record.  It  will  not 
do  either  for  the  Republican  party  or  the  Democratic  party 
to  say  that  the  women  were  not  afforded  a  patient  hearing;  that 
will  not  do.  We  know  their  power.  We  saw  what  they  did  in 
Brooklyn  at  the  last  election,  when  to  a  woman  they  stood  up  in 
defense  of  right  against  wrong,  struck  down  wrong  and  sustained 
right,  or  else  Brooklyn  would  not  have  been  saved  politically  as  it 
was  saved  on  that  occasion.  They  knew  the  record  of  the  women 
in  every  political  emergency.  They  watched  them  during  and  from 
the  period  of  the  civil  war  down  to  this  time.  They  knew  their 
efficacy  and  they  knew  their  strength.  It  was  necessary  not  to 
disgruntle  them.  Neither  party  can  afford,  women,  openly  and 
avowedly,  to  reject  your  application,  no  matter  how  great  is  the 
expediency  for  so  doing.  So,  we,  your  advocates,  are  here  to-night, 
in  a  parliamentary  sense  in  the  worst  possible  plight  in  which  we 
could  find  ourselves,  arguing  against  a  majority  report,  and  if  we 
succeed,  being  permitted  the  poor  boon  of  getting  into  the  Conven- 
tion and  fighting  the  battle  all  over  again;  and  there  it  will  be 
fought  all  over  again  if  the  occasion  shall  arise.  But,  I  believe  that 
the  sense  of  fairness  of  this  Convention,  now  upon  this  August 
night,  in  1894,  is  going  to  be  such  that  this  abominable  farce  will 
cease,  and  that  every  man  in  this  Convention  will  honestly  and  fairly 
put  his  vote  on  record  in  favor  of  giving  these  women,  not  the 
pretense  of  a  chance,  but  a  real  chance,  the  chance  of  going  to  the 
people  for  an  expression  of  opinion.  And  yet  I  concede  if  theirs  is 
not  an  admissible  claim,  if  it  is  not  a  well-founded  application  that  is 
desired  to  be  submitted  to  the  people,  do  not  grant  it.  There  might 
be  some  project  supported  by  six  or  seven  hundred  thousand  people 
that  might,  nevertheless,  be  fallacious,  it  might  be  untenable,  it 
might  have  no  foundation;  and  I  shall  enter  sufficiently  into  the 
discussion  of  the  woman's  question  at  this  moment  to  see  whether 
this  is  a  question  that  does  not  deserve,  by  reason  of  its  own  merits, 
to  go  before  the  people  to  be  adjudicated. 

I  will  not  enter,  to-night  at  all  events,  into  a  discussion  of  the  scien- 
tific aspects  of  this  question,  as  to  whether  the  elective  franchise  is 
not  a  natural  and  inherent  right  that  inures  to  women  as  to  men, 
and  that  of  itself  gives  to  them,  as  adult,  non-criminal  and  otherwise 
than  by  sex,  qualified  citizens,  the  right  to  vote.  I  leave  that  to 


202  REVISED  RECORD.  [Wednesday, 

more  philosophical  minds  to  discuss;  whether  it  is  a  natural  right, 
whether  it  is  an  artificial  right,  whether  it  is  a  conventional  right, 
whatever  the  nature  of  the  right  may  be  is  not  the  question  now.  Is 
it  right?  Is  it  right  of  itself  that  that  they  should  be  permitted  to 
vote?  No  matter  from  what  source  the  right  is  derived.  Is  it  right 
at  all  in  the  present  condition  of  affairs?  Do  women  stand  in  a 
situation  to  require  it?  Do  women  stand  in  the  position  that,  if 
given  to  them,  they  will  be  able  to  do  justice  to  the  great  boon  with 
which  you  shall  have  intrusted  them?  If  you  do  not  mean,  at  the 
end  of  this  nineteenth  century,  to  carry  out  what  you  have  impliedly 
promised  by  all  your  acts,  you  will  perpetrate  an  act  of  injustice  in 
this  fin  de  siecle  cause  for  which  you  can  never  atone.  If  you  have 
not  meant  to  make  women  fully  and  absolutely  your  equals,  if  you 
had  not  intended  to  qualify  them  for  the  full  rights  of  citizenship, 
then  it  was  your  duty  to  have  kept  them  in  the  state  of  comparative 
darkness  in  which  they  were  at  the  beginning  of  this  century. 
There  was  a  time  when  it  would  have  been  inexpedient  for  women, 
not  for  the  good  of  the  body  politic,  as  a  class,  to  have  applied  for 
the  right  to  vote,  whether  it  was  a  natural  or  an  artificial  right. 
They  were  not  qualified  to  exercise  it.  You  denied  them  education 
even  beyond  the  beginning  of  this  century.  A  woman  had  no  right 
to  be  educated  in  anything  except  the  most  rudimentary  matters, 
reading,  writing,  perhaps  arithmetic,  hardly  that.  There  were  nc 
schools  for  her,  though  she  paid  her  taxes  toward  the  school  fund. 
The  century  had  well  progressed  when,  just  across  the  river  (every 
man  in  Troy  knows  the  names  of  Willard  and  the  Willard  School) 
a  noble  woman,  believing  that  women  and  men  were  formed  in  the 
same  mold,  that  they  had  the  same  adaptability,  was  willing  to  try 
the  experiment  of  educating  women,  and  their  education  was  begun. 
Her  example,  the  first  in  this  State,  was  emulated  because  it  had 
been  successful,  and  school  after  school  was  opened,  and  Vassar 
College  and  other  great  female  colleges  were  founded,  and  women 
were  sent  to  school  and  became  educated  and  the  public  schools 
became  open  to  them.  It  was  not  only  in  the  lower  rudimentary 
departments,  not  only  in  the  primary  schools,  which  were  the  only 
schools  which  existed  for  the  benefit  of  women  up  to  the  middle 
of  this  century,  but  the  grammar  schools,  and  in  the  higher  grades, 
that  they  were  permitted  to  attend  the  Norman  Schools  created 
for  them  at  public  expense.  Other  circumstances  helped  to  insure 
their  liberal  education.  The  work  of  the  housewife  at  the  farm  was 
no  longer  absorbing  as  it  had  been.  The  farmers  can  tell  you 
more  about  that  than  I.  The  woman  of  the  Grange,  who  told  her 
simple  story  upon  that  platform,  has  explained  to  you  that  cheese- 


August  8.]  CONSTITUTIONAL  CONVENTION.  203 

making  and  butter-making  that  occupied  all  the  time  of  the  mothers 
and  daughters  became  a  matter  of  factory  work;  that  spinning  and 
kindred  arts  as  domestic  employments  had  passed  away  and  were 
unnecessary  to  be  performed,  and  time  came  to  these  women  for 
their  development,  more  time  than  to  the  men  upon  the  farm,  more 
time  than  to  the  artisan.  What  wonder  then  that  the  great  average 
of  women,  who  attended  the  great  schools  of  learning  throughout  the 
State,  exceeded  greatly  the  proportionate  number  of  men  who  went 
there  to  be  educated!  What  wonder  that  they  became  as  well  edu- 
cated? What  wonder  that  they  are  here  about  us,  as  fully  equipped 
in  every  mental  attribute,  in  every  intellectual  qualification,  in  every- 
thing that  qualifies  them  to  cast  a  vote  intelligently  and  to  take 
part  in  the  matters  and  affairs  of  the  government  intelligently  and 
well?  So  these  women  became  equipped.  You  did  this  for  women. 
It  was  cruelly  done  if  you  shall  now  stop.  You  have  done  cruelly 
in  equipping  them  as  you  have,  if  you  have  begotten  the  appetite 
and  desire, -together  with  the  ability,  to  partake  of  the  benefits  of 
citizenship  and  then,  like  Tantalus,  have  struck  the  cup  from  their 
lips  as  they  are  about  to  drink.  But  you  have  done  more  in  holding 
out  to  them  the  hope  of  complete  enfranchisement.  The  husband 
and  wife  were  one,  the  husband  was  the  one,  the  femme  covert,  what 
was  she?  A  nonentity.  Her  property,  his  property;  her  children, 
his  children;  her  belongings,  in  every  respect,  his  belongings;  her 
individuality  absorbed  in  the  individuality  of  the  man,  in  obedience 
to  the  English  rule.  It  was  not  of  Anglo-Saxon  origin. 

It  was  foreign  to  the  true  spirit  of  Anglo-Saxonism  or  of  Teu- 
tonism,  a  principle  which  had  its  origin  in  the  Orient,  where  women 
were  degraded,  where  a  woman  was  a  chattel,  where  even  her  pres- 
ence in  the  temple  counted  as  nothing  toward  the  number  of  wor- 
shippers that  were  essential  to  make  up  the  number  of  those  who 
could  address  God  properly,  where  the  harem  was  her  only  home 
and  sanctuary.  It  was  an  Oriental  iniquity.  It  never  belonged  to 
the  spirit  of  the  Anglo-Saxon  race.  But  the  domination  once 
acquired  by  man  over  woman  was  maintained  until  1848.  Was 
there  ever  such  a  year?  Has  history  ever  shown  a  year  like  1848? 
You  older  men  know  it,  know  its  record,  how  every  country  in  the 
world,  as  by  one  simultaneous  outburst,  became  involved  in  the 
great  work  of  regeneration,  of  revolution,  of  revivification,  of 
improvement,  of  destruction  of  the  wrong  and  the  upholding  of  the 
right.  Glorious  1848.  It  will  have  its  counterpart  in  what  shall 
be  glorious  1894,  if  justice  be  now  accorded  to  woman.  In  1848 
it  began  to  be  seen  that  there  was  an  injustice;  that  the  woman 
should  have  her  own  property,  at  least,  even  if  she  could  not  exer- 


204  REVISED  RECORD.  [Wednesday, 

cise  the  full  rights  of  citizenship,  and  men,  who  had  been  tyrannical 
and  who  had  outraged  the  proprieties  of  the  situation,  blushed;  and, 
although  it  took  five  or  six  or  seven  years  before  the  matter  was 
finally  accomplished,  yet  in  1848  the  people  of  the  State  of  New 
York,  always  first  to  do  justice  after  all,  the  generous  people  of  the 
generous  Empire  State,  put  upon  the  statute  book  the  act  that 
disenthralled  the  woman  that  had  been  married,  and  who,  up  to  that 
time,  had  been  an  abject  slave.  New  York  State,  the  pioneer 
among  the  States  in  all  that  has  been  great  and  good,  in  1848,  gave 
woman  the  right  to  her  own  property,  her  own  earnings,  and  sub- 
sequently, in  1860  —  it  took  twelve  years  to  do  that  —  to  have  a 
fair  say  in  respect  to  the  affairs  of  her  own  children  and  their  guar- 
dianship. In  1860  it  was  perfected,  but  there  was  a  spasm  for  a 
moment;  they  had  done  too  much,  and  in  1862  there  was  a  modifi- 
cation of  the  statute  as  it  was  passed,  but  there  was  a  protest  that 
swept  throughout  the  State,  and  in  1871  finally  women  found  that 
women  were  entitled  to  the  fruits  of  their  own  industry,  that  they 
were  entitled  to  the  guardianship  of  their  own  children,  that  mar- 
riage did  not  mean  absorption;  that  it  meant  companionship,  fellow- 
ship; that  it  meant  equal  rights  civilly,  equal  rights  in  a  property 
sense,  and  if  justice  be  done  by  this  Convention  in  1894,  equal  rights 
in  that  which  will  be  the  crowning  glory  of  it  all,  equal  rights  in  a 
political  sense. 

Now  that  is  the  woman  you  have  created,  re-created.  You  have 
thrown  off  her  shackles,  you  have  made  her  free,  you  have  qualified 
her  to  accept  that  which  she  now  asks.  You  know  that  she  is 
fitted  to  perform  her  share  in  the  duties  of  the  day.  Let  her  record 
of  the  schools  she  has  attended  tell  you,  testify  for  her.  Let  the 
record  of  every  enterprise  in  which  she  has  engaged  give  its  testi- 
mony as  to  her  ability,  and  can  you  then  believe  that  you  have  the 
right  to  stop  short  now  of  full  justice,  now  that  you  have  made 
woman  better,  nobler,  free,  untrammeled,  your  companion,  your 
equal?  Are  you  willing  to  still  keep  one  mark  of  her  slavery  and 
degradation  imprinted  upon  her  shoulder?  Shall  the  fleur  de  Us  of 
disfranchisement  still  remain,  or  are  you  willing  to  obliterate  it  and 
make  her  as  she  should  be  politically,  as  she  is  in  all  other  respects, 
your  helpmate,  your  co-worker,  your  associate,  as  she  was  intended 
to  be,  as  she  will  be  if  you  will  have  the  confidence  to  permit  her 
to  exercise  the  full  rights  of  citizenship?  But  yet  more  has  been 
done  in  the  direction  of  which  I  have  just  spoken.  What  you  will 
accord  to  the  women  generally  will  be  a  priceless  privilege,  and  will 
be  cherished;  but  there  are  other  directions  where  the  right  to  vote 
would  be  more  than  a  privilege;  where  it  would  be  an  absolute 


August  8.]  CONSTITUTIONAL  CONVENTION.  205 

necessity.  Six  million  working  women  in  this  United  States  of 
America,  more  than  half  a  million  in  the  State  of  New  York,  are 
almost  helpless  without  it.  School  teachers,  factory  girls,  shop  girls, 
women  engaged  in  every  enterprise,  from  the  highest  to  the  lowest, 
are  pursuing  their  vocations  under  almost  crushing  difficulties, 
which  will  disappear  if  this  franchise  be  accorded  them.  I  pray  for 
the  right  of  self-protection,  for  the  right  to  have  a  weapon  that  shall 
enable  them  to  do  justice  to  themselves,  in  behalf  of  600,000  women, 
or  about  that  number,  in  the  State  of  New  York,  asking  to  have  the 
protection  which  only  the  right  to  vote  can  give  them.  What  would 
the  workingmen  of  this  State  be  without  the  vote?  I  ask  the 
workingmen  who  are  here  gathered.  Would  their  existence  be 
bearable?  Before  co-operation  and  combination,  supported  by  the 
power  of  the  ballot,  whose  force  had  remained  unrecognized  by  its 
possessors,  had  enabled  them  to  gather  together,  the  car  driver  was 
paid  one  dollar  and  sixty  cents  a  day  for  sixteen  hours'  work.  But 
the  giant  learned  to  know  his  strength.  It  had  lain  fallow  and  idle 
and  was  not  exercised.  But  when  he  announced:  "I  will  use  my 
vote  in  favor  of  those  who  do  me  justice,  and  I  will  use  my  vote 
against  those  who  do  me  injustice,"  his  lot  was  improved.  And 
how  rapid  the  change.  From  degradation  and  squalor,  from  the 
depth  of  misery,  the  workingman  rose  to  be  a  man  who  is  self- 
respecting  and  world-respected,  finding  his  strength,  not  in  added 
wage,  not  in  greater  financial  prosperity  only,  but  mainly  in  the 
fact  that,  as  an  American  citizen,  he  is  the  peer  of  every  other 
American  citizen,  and  can  show  his  strength  as  an  individual  and  in 
combination  with  other  individuals  aggregated  together  for  their 
own  protection.  How  is  it  with  the  unenfranchised  working 
women,  gentlemen?  You  know  their  situation.  Not  the  women 
who  may  have  the  vote,  but  the  women  who,  for  the  perpetuity  of 
their  own  existence,  must  have  the  vote.  How  is  it  with  them? 
They  are  gathered  everywhere.  They  are  honest,  industrious, 
faithful  and  loyal,  but  they  have  no  vote;  they  have  no  weapon  of 
offense  or  defense,  and  what  is  the  result?  Longer  hours  of  labor 
than  men,  underpaid,  far  below  men.  The  well-equipped  female 
teacher,  obliged  to  maintain  her  respectability  and  appearance,  and 
obliged  so  to  maintain  herself  that  she  shall  be  a  credit  to  the 
school  where  she  performs  her  duty,  earns,  in  the  city  of  New 
York,  $450  a  year;  and  the  man  who  does  the  same  work,  whose 
expenses  are  no  greater,  is  almost  ashamed  to  receive  a  thousand 
dollars  for  the  performance  of  the  same  services. 

I  am  a  director  of  a  railroad  company.     It  was  robbed  by  its 
employes,  gatemen,  ticket  takers,  and  it  resolved  upon  a  change. 


206  REVISED  RECORD.  [Wednesday, 

The  men  were  discharged  and  women  took  their  places.  The 
experiment  has  run  along  two  years,  and  where  all  was  peculation 
and  dishonesty,  there  have  been  honesty  and  fairness,  not  a  single 
dollar  dishonestly  taken  by  a  single  female  employe.  And  how  is 
she  requited?  Her  hours  of  service  are  longer;  fourteen  dollars  a 
week  were  the  wages  of  the  men,  ten  dollars  a  week  is  the  wage 
of  the  women.  There  is  better  service,  more  loyal  employment,  and 
yet  the  absence  of  the  vote  encourages  oppression  and  discrimina- 
tion which  would  disappear  if  that  potent  instrument  of  power  were 
once  placed  in  their  hands. 

I  do  not  speak  for  the  aristocratic  dame  who  may  have  signed 
the  petition  or  who  may  not -have  signed  the  petition.  I  do  not 
speak  for  your  wives  and  your  daughters,  to  whom  the  privilege 
of  voting  would  be  a  great  boon  and  blessing.  But  I  speak  for 
the  women  of  toil.  I  speak  for  the  women  who  honestly  labor, 
to  whom  you  have  opened  up  every  avenue  of  work  and  employ- 
ment and  who  you  know  do  their  work  properly  and  well.  I  speak 
for  these  underpaid  and  suffering  women,  and  ask  that  you  change 
their  condition  of  misery  into  one  of  happiness  by  permitting  this 
matter  to  go  to  a  vote. 

I  represent  one  of  the  working  woman's  organizations  in  New 
York.  I  believe  that  my  interest  in  this  matter  was  excited  by 
that  fact.  But  I  have  seen  the  little  women  come  to  this  Assembly 
and  to  the  Senate;  I  have  seen  them  eloquently  and  earnestly 
petition  that  the  factory  law  might  be  extended  over  the  great 
dry  goods  warehouses,  the  great  shops  of  New  York,  so  that  the 
factory  inspector  might  see  to  it  that  the  laws  made  for  their 
reasonable  protection  are  observed.  I  have  seen  little  Mrs. 
Woodbridge,  their  president,  come  here  again  and  again,  to 
the  legislative  committees  and  present  her  case,  being  received 
just  as  courteously  as  the  Suffrage  Committee  has  received 
these  committees,  and  being  shown  the  door  just  as  cour- 
teously when  her  modest  request  was  laughed  away.  I  have  seen 
delegates  representing  workingmen's  conventions,  who  have  come 
forward  to  have  boycotting  legalized,  and  I  have  seen  a  subser- 
vient committee  of  the  Assembly  pass  the  report  in  favor  of  the 
application  almost  before  the  applicants,  who  had  not  asked  it 
as  a  favor,  but  had  demanded  it  as  a  right,  had  left  the  committee 
room.  Does  not  this  give  evidence  of  the  difference  that  the  ballot 
affords?  I  am  not  to-night  discussing  the  great  abstruse  questions 
underlying  this  matter  as  to  physical  and  pathological  differences. 
Suffice  it  now  to  say  that  I  believe  them  to  be  ridiculous.  They 
were  once  humorous;  they  are  so  trite  as  to  be  no  longer  enter- 


August  8.]  CONSTITUTIONAL  CONVENTION.  207 

taining.  Everybody  knows  that  the  average  woman  is  able  to 
pursue  her  vocation  in  life  and  attend  to  the  mere  matter  of  deposit- 
ing a  ballot  on  election  day  just  as  well  as  the  average  man  is  able 
to  attend  to  his  vocation  and  perform  the  same  duty. 

It  is  idle  to  say  that  they  cannot  afford  the  time;  that  their 
domestic  duties  absorb  them  too  much.  If  it  were  true,  it  would 
be  bitter  testimony  to  the  injustice  of  men  who  would  drive  them 
into  an  absorbing  occupation  which  would  prevent  them  from 
knowing  what  is  going  on  about  them  in  their  country,  and  what 
the  affairs  of  government  require  them  to  do,  and  not  have  sufficient 
leisure  to  devote  to  their  country's  interests  and  their  own.  But 
it  is  not  true.  Every  woman  would  have  time  to  understand  the 
political  questions  of  the  day,  and  every  woman  will  have  time 
to  deposit  her  ballot.  It  will  degrade  woman  if  you  give  her  the 
ballot  —  that  is  the  hue  and  cry,  and  that  is  the  thing  that  has 
affected  some.  Did  you  ever  hear  of  the  degradation  of  the  ballot 
before  except  in  this  connection?  Are  you  degraded  by  the  use 
of  the  ballot?  What  is  the  proudest  emotion  that  every  American 
citizen  has  felt  during  his  life?  Was  it  not  when  on  the  November 
day  succeeding  his  majority  he  was  able  to  take  advantage  of  his 
citizenship,  of  the  proud  heritage  that  had  descended  to  him  from 
his  forefathers,  to  exercise  the  right  to  cast  his  vote  in  respect 
to  the  affairs  of  government,  when  on  that  November  day  he  could 
add  his  flake  to  the  great  snowstorm  of  ballots  which  then  fell  into 
the  ballot-box?  And  if  you  were  to  put  upon  your  statute  books 
one  line  that  would  tend  to  deprive  him  of  that  ballot,  make  one 
intimation  that  except  for  crime  or  imbecility  he  would  lose  the 
right  to  vote,  an  irresistible  storm  of  indignation  would  sweep 
throughout  this  State  which  would  carry  you  from  your  seats. 
Degradation  of  the  ballot!  Is  not  the  mere  assertion  an  insult  to 
the  whole  American  republican  system  of  government?  Ah,  but 
it  is  degrading  for  the  women.  Men,  do  you  with  premeditation 
say  of  yourselves  that  your  characteristics  are  such  that  the  women 
of  your  family  cannot  go  openly  in  the  light  of  day  to  any  poll, 
to  any  booth,  to  any  ballot-box,  as  American  women  and  American 
citizens,  and  deposit  their  ballots  on  election  day  without  fear  of 
insult;  is  it  not  true  that,  on  the  contrary,  rudeness  that  might 
be  excused  in  their  absence  will  disappear  as  if  it  had  never  existed, 
so  that  when  women  too  shall  visit  them  the  election  booth  of  the 
great  cities  of  the  State  of  New  York  will  be  the  sweetest  and  the 
purest  places  which  can  be  visited  on  election  day.  You  dare  not 
insult  the  American  gentleman,  whether  he  be  of  the  most  lowly  or 
the  highest  grade,  by  alleging  that  women  cannot  safely  be  per- 


208  REVISED  RECORD.  [Wednesday, 

mitted  to  exercise  the  right  of  franchise,  because  it  necessitates  asso- 
ciation with  men.  The  ballot  elevates,  it  ennobles,  it  never  lessens, 
it  never  injures,  it  never  can  destroy. 

But  you  are  extending  the  ignorant  vote,  that  is  the  danger 
we  are  told.  Allow  these  women  to  vote,  and  this  will  be  the 
dire  consequence.  A  great  ma'ss  of  ignorance  will  at  once  pre- 
cipitate itself  into  the  general  scheme  and  polity  of  our  govern- 
ment, and  our  government  will  be  swamped  and  destroyed.  Have 
you  examined  the  census?  The  number  of  ignorant  women  in  the 
State  of  New  York,  those  who  cannot  read  and  write,  was  at  the 
last  census  six  per  cent  of  the  entire  population;  the  number  of 
men,  eight  and  one-half  per  cent.  There  is  before  your  Convention 
a  proposition,  submitted  by  Mr.  Gilbert,  that  an  educational  quali- 
fication shall  be  requisite  after  the  year  1905,  in  respect  of  every 
voter  who  has  not  become  qualified  to  vote  before  that  day.  If 
you  deem  it  essential  that  every  voter,  man  or  woman,  shall  be 
intellectually  qualified,  pass  that  amendment,  and  it  will  affect, 
women  as  it  does  men.  So  far  as  I  am  personally  concerned,  if, 
when  this  matter  comes  to  the  Convention  for  deliberation,  you 
desire  to  affix  as  a  requisite  for  the  ballot  for  women,  an  educational 
qualification,  I  am  content;  and  I  predict  that  within  a  year  the  six  per 
cent  of  ignorance  in  the  State  of  New  York  will  not  remain 
one  and  one-half  per  cent,  because  the  women  will  be  apt,  and 
quick  and  ready  to  discern  what  is  to  their  advantage,  and  their 
native  intelligence  will  make  them  readily  educated.  But  I  am 
answered,  this  is  all  right  for  the  women,  it  is  perhaps  a  privilege 
to  be  accorded  them  at  some  time,  but  it  is  not  a  right,  and  we 
do  not  know  that  the  time  has  yet  come  for  the  extension  of  this 
privilege.  Well,  if  the  time  has  not  now  come,  under  the  condi- 
tion of  affairs  that  I  have  described,  when  will  it  come?  I  can 
understand  that,  at  the  Convention  of  1867,  when  Mr.  Tucker,  and 
Mr.  Veeder,  and  Mr.  Schumaker  and  the  other  men  who  were 
gathered  in  that  Convention,  and  then  and  there,  in  that  far  back 
age,  and  in  the  comparative  condition  of  ignorance  that  then  existed, 
voted  in  favor  of  this  proposition,  it  was  a  brave  thing  to  do.  It 
requires  no  bravery  now  to  accord  this  measure  of  justice;  the 
condition  of  woman  has  changed,  and  what  was  then  a  sacrifice  on 
the  part  of  men  who  had  the  courage  to  vote  as  they  voted,  is 
a  matter  of  duty  and  of  obligation  at  this  time. 

This  amendment  is  brief.  It  recites  that  at  the  next  general 
election  there  shall  be  submitted  to  the  people  for  their  approval 
an  amendment  to  section  I,  article  2,  which,  if  adopted,  will  enable 
the  question  to  be  submitted  at  the  next  general  election,  of  course 


August  8.]  CONSTITUTIONAL  CONVENTION.  209 

entirely  apart  from  the  rest  of  your  Constitution,  whether  the  word 
male  shall  be  stricken  from  the  Constitution  or  not. 

It  is  unfair  to  the  women  that  that  concession  shall  be  made 
in  the  matter  of  procedure,  it  is  most  unjust  that  they  should  be 
compelled  twice  to  go  through  the  ordeal  of  a  public  vote.  I  Jut 
men  on  both  sides  of  the  house,  fair  men,  just  men,  have  said  to  me, 
"  do  not  impose  as  a  part  of  the  Constitution  itself  the  provision  to 
strike  the  word  '  male '  from  the  Constitution,  and  jeopard  the 
whole  instrument  in  the  event  of  the  unpopularity  of  this  measure 
before  the  people." 

Well,  I  am  not  a  zealot  upon  this  question;  I  am  not  a  crank; 
no  one  in  this  circle  is.  We  feel  and  appreciate  that  there  are  other 
things,  none  so  sacred,  none  so  important  as  the  particular  ques- 
tion to  which  I  have  addressed  myself  this  evening,  which  are 
engaging  out  attention,  and  I  am  willing  and  all  are  willing  that 
there  should  be  no  embarrassment  to  the  general  work  of  this 
Convention  by  the  submission  of  this  question  to  the  people.  It 
cannot  hurt  your  Constitution  in  the  fall  of  1894,  to  have  submitted 
the  amendment  to  section  i  of  article  2;  but  if  you  think  it  does, 
I  will  in  Convention  make  this  further  concession,  that  the  pre- 
liminary amendment  shall  also  be  separately  submitted,  so  that 
your  sacred  Constitution,  which  I  am  as  anxious  as  you  are  shall 
be  made  as  perfect  and  as  right  and  as  acceptable  to  the  people 
as  possible,  shall  in  no  respect  be  jeopardized,  so  that  all  the  fea- 
tures of  your  Constitution,  the  important  question  whether  the 
Court  of  Appeals  shall  have  seven  men  or  nine  men,  the  important 
question  whether  a  bi-partisan  board  of  election  shall  or  shall  not 
be  had,  the  important  question  whether  there  shall  be  reapportion- 
ment  or  no  reapportionment.  shall  be  entirely  separated  from  what 
may  appear  to  many  of  you  to  be  so  unimportant  a  question  as  the 
most  sacred  right  of  one-half  of  the  population  of  the  State  of  New 
York.  We  will,  therefore,  agree,  and  we  will  do  so  by  solemn 
resolution,  when  the  opportunity  shall  be  afforded,  that  even  the 
preliminary  submission  in  1894  shall  be  separate  from  the  main 
Constitution,  and  when  that  is  adopted,  then  we  must  wait  until 
1895  for  a  final  decision  of  the  matter,  and  in  the  meantime  both 
the  advocates  and  the  opponents  can  address  themselves  to  the 
people  of  the  State  of  New  York,  and  when  there  can  be  a  solemn 
and  deliberate  adjudication  at  a  time  when  there  is  nothing  else; 
to  vex  the  public  mind,  no  one's  scheme  to  be  thwarted,  no  indi- 
vidual desire  to  be  defeated.  Then,  in  1895,  with  a  whole  year's 
preparation,  with  opportunity  to  the  whole  people  to  fully  discuss 
H 


210  REVISED  RECORD.  [Wednesday, 

the  question,  it  can  be  submitted  if  you  will  permit  it 
to  be  submitted  to  the  referendum  of  the  people,  to  be  then 
adjudicated,  the  question  shall  the  glorious  women  of  the 
Empire  State,  who  have  stood  with  us  in  every  hour  of  adver- 
sity, who  have  rendered  happier  every  hour  of  prosperity,  who  are 
our  pride,  who  need  but  one  thing  to  make  them  fully  our  equal, 
the  right  to  vote,  the  greatest  boon  that  can  be  accorded  to  any 
citizen.  All  will  agree  that  what  these  women  have  done  must  have 
been  done  most  unselfishly,  must  have  been  done  simply  in  the 
interest  of  the  principles  they  advocated;  for  them  there  was  no 
corporate  interest  to  subserve;  for  them  there  was  no  ambitious 
longing  to  placate;  they  wanted  no  judgeships,  they  wanted  no 
places;  they  had  no  scheme  for  self-aggrandizement;  unselfish  in 
winter  and  in  summer,  through  good  repute  and  ill-repute,  at  all 
times,  they  have  come  here  year  in  and  year  out,  have  grown  gray 
in  the  service,  are  almost  ready  to  give  up  the  battle  of  life  which 
in  this  respect  they  have  waged  so  well,  so  nobly,  but,  alas,  thus 
far,  so  unsuccessfully.  May  it  not  be  that  with  the  adoption  of  the 
contemplated  action,  pledging  yourselves  to  nothing,  but  according 
this  slight  privilege  of  the  right  of  going  to  the  people,  that  finally, 
in  this  year  of  grace  1894,  there  will  come  redemption  at  last,  at  last? 
(Great  applause.) 

Mr.  Titus  —  Mr.  President,  and  gentlemen  of  the  Convention: 
The  arguments  presented  against  the  question  of  universal  suffrage 
melt  like  snow  before  a  mid-summer  sun.  But  the  question  that  we 
have  to  deal  with  here  is  the  question  whether  we,  the  servants  of 
the  people  of  this  State,  will  present  this  amendment  to  the  people 
for  their  acceptance  or  rejection.  Shall  we  raise  ourselves  above 
the  people  and  say:  "You  shall  not  vote  upon  this  question;  it  is 
not  good  for  the  State?"  Why  should  we  submit  it?  For  the  very 
reason  that  700,000  people  of  our  State  have,  by  petition  presented 
to  us  here,  asked  us  to  do  so.  I  ask  you,  sir,  in  all  fairness  and 
in  all  candor,  whether  if  any  other  question  were  presented  to  this 
Convention,  coming  from  700,000  people,  you  would  pause  a 
moment  in  giving  it  your  vote  and  your  support?  But  I  believe 
that  a  majority  of  the  gentlemen  in  this  Convention  are  too  honest, 
too  fair  and  too  just  to  permit,  after  the  case  that  the  women  have 
made,  that  they  shall  be  non-suited.  I  will  ask  you  lawyers  if  you 
have  ever  tried  a  case  before  a  judge  and  jury  and  been  non-suited? 
Did  you  ever  leave  that  court  room  feeling  that  half  justice  had  been 
done  you?  You  have  said  to  yourselves,  "  Why  didn't  he  allow  me 
to  go  to  the  jury?"  and  in  many  cases  you  have  gone  down  into 
your  own  pocket  and  paid  the  fee  for  printing  in  order  that  you 


August  8.]  CONSTITUTIONAL  CONVENTION.  211 

might  go  to  the  General  Term.  But  these  women  have  no  Gen- 
eral Term  to  go  to  —  unless  it  be  the  next  Convention,  some  twenty 
years  hence  —  and  of  the  women  all  about  us  to-night,  that  have 
worked  and  labored  in  this  cause,  how  many  of  them  will  by  that 
time  have  gone  to  their  kindred  dust? 

I  do  not  know  that  I  can  say  anything  more  to  you,  gentlemen  of 
the  Convention,  than  has  been  said  by  the  women  themselves  from 
that  platform.  They  made  their  arguments  there,  and,  as  I 
have  already  said,  the  arguments  against  suffrage  melted  like  snow 
before  a  mid-summer  sun.  Gentlemen,  I  feel  and  I  say,  in  all  truth 
and  candor,  that  if  I  refused  to  raise  my  voice  in  this  matter  I 
would  be  false  to  my  trust  to  the  State  and  to  the  oath  I  took  here 
on  the  eighth  day  of  last  May. 

Gentlemen,  if  you  will  bear  with  me  a  few  moments  we  will 
review  the  various  acts  that  have  been  passed  in  the  last  fifty  years 
for  the  benefit  of  the  women  of  our  State.  The  gentleman  who  pre- 
ceded me  has  gone  into  that  matter  so  fully  that  I  will  just  briefly 
speak  of  one  or  two  matters.  In  1846,  when  the  question  of  the 
right  of  a  married  woman  to  hold  property  as  a  femme  sole  was 
agitated,  we  found  then  people  who  claimed  that  the  whole  of 
society  would  be  demoralized  and  that  great  wrong  would  come. 
The  act  was  passed,  and  what  was  the  result?  More  than  one 
billion  of  property  in  our  State  is  owned  by  women  to-day ;  they  pay 
a  tax  of  over  one  million  dollars  on  that  property  —  and,  in  the 
language  of  our  forefathers,  who  established  this  country,  that  taxa- 
tion, without  representation,  is  tyranny.  The  next  act  that  was 
passed  was  in  relation  to  woman  doing  business  in  her  own  name. 
Gentlemen  of  the  Convention,  I  will  not  insult  your  intelligence  by 
asking  you  whether  women  were  degraded  or  their  status  lowered 
by  that  act.  We  have  the  living  evidence  of  its  effects  all  about  us. 
I  have  heard  some  members  in  this  House  say  that  they  believed 
woman's  place  was  at  home,  in  the  bosom  of  her  family.  I  fully 
agree  with  them ;  and  while  in  the  bosom  of  that  family,  at  the  close 
of  day,  with  her  children  clustered  about  her  knee  while  they  repeat 
the  Lord's  prayer,  or  be  she  of  the  Hebrew  faith  and  faces  the 
setting  sun  to  offer  her  devotions  to  the  coming  Messiah,  it  matters* 
not;  but  I  ask  you  gentlemen,  in  all  fairness,  should  not  that  woman 
have  some  voice  as  to  who  shall  be  the  men  that  are  to  make  the 
laws  under  which  those  children  shall  live  and  grow  to  manhood 
and  womanhood?  "Ah,  but,"  you  will  say,  "the  father  will  take 
care  of  that."  Very  true.  But  let  us  review  how  he  does  take 
care  of  that.  Take  the  last  election,  if  you  will.  What  did  every 
gentleman  in  this  Convention  do  —  T  myself  no  exception?  Wre 


212  REVISED  RECORD.  [Wednesday, 

went  to  the  voting  booth;  and  as  we  entered  and  got  our  tickets 
and  went  into  that  closet,  or  chamber  of  reflection,  which  I  think  is 
a  better  name  for  it,  and  stood  there  alone  with  our  God  and  our 
conscience,  is  there  a  gentleman  in  this  room  to-night,  that  looked 
over  his  ticket  and  picked  out  the  names  of  the  men  with  reference 
to  their  qualifications  for  making  the  laws  under  which  his  children 
should  live,  when  he  himself  would  be  no  more?  No;  we  were  all 
alike,  my  friends;  we  looked  to  see  if  they  were  the  nominees  of 
our  party,  and  we  voted  our  ticket.  You  may  say  in  answer  to  that 
that  our  candidates  were  all  good,  true  and  tried  men.  Be  that  as  it 
may;  but  how  often,  in  convention,  have  we  nominated  a  candidate 
for  a  place  on  the  ticket  with  the  object,  as  we  term  it,  of  strength- 
ening it,  when  we  would  not  have  invited  that  candidate  to  that 
home  where  we  left  that  mother  at  prayer  with  those  children. 
Gentlemen  of  the  Convention,  I  believe  that  suffrage  to  women 
would  have  a  tendency  to  purify  the  ballot,  and  that  both  political 
parties  in  this  State,  if  they  desired  a  victory  would  place  men  upon 
their  tickets  whose  public  and  private  character  would  stand  the 
strongest  rays  of  the  search  light.  I  have  heard  some  members  say 
that  it  would  grieve  them  very  much  to  have  their  wife  come  home 
in  the  small  hours  of  the  morning  with  a  load  of  whiskey  and  a 
black  eye,  from  a  political  meeting.  Well,  I  have  attended  political 
meetings  for  the  last  twenty  years,  and  I  have  never  seen  the  occa- 
sion when  it  was  necessary  to  come  home  in  that  condition;  biit 
those  gentlemen  know  their  own  wives  best.  I  have  heard  some 
object  to  women  voting  and  saying  that  when  she  could  shoulder 
the  musket  she  would  then  be  entitled  to  vote;  for  the  bullet  and  the 
ballot  went  together.  But  I  am  proud  to  say  that  I  never  heard  an 
old  soldier  make  such  an  expression.  They  have  seen  the  work,  and 
the  labor,  and  the  duty  and  the  service  rendered  by  women  for  their 
country;  you  have  seen  them  in  the  hospitals  and  on  the  battle 
field;  aye,  you  have  seen  women  there  with  kind  and  gentle  hands, 
doing  all  in  their  power  to  aid  the  wounded  soldier.  Take  the  one 
who  organized  the  sanitary  commission  in  this  country  and  ask  to 
see  what  services  she  performed  to  the  many  thousands  connected 
with  that  institution.  Take  the  work  of  Florence  Nightingale,  in 
the  Crimea,  of  Clara  Barton,  the  founder  of  the  Red  Cross  Society, 
a  society  that  now  encircles  the  civilized  globe  and  which  has  earned 
for  the  members  of  the  Red  Cross  the  name  of  angels  of  mercy.  All 
governments  have  always  discouraged  the  idea  of  women  as 
soldiers.  The  records  of  the  war  department  at  Washington  will 
show  that  during  the  war  many  women  enlisted  as  men,  served  and 
fought  bravely  through  the  war,  but  the  moment  that  their  sex  was 


August  8.]  CONSTITUTIONAL  CONVENTION.  213 

discovered  they  were  immediately  discharged  from  the  army. 
Take,  if  you  will,  the  services  rendered  by  Jean  d'Arc,  of  France, 
who  buckled  on  her  sword  and  led  her  countrymen  to  victory,  as  a 
reward  for  which  she  was  burned  at  the  stake.  It  has  taken  France 
nearly  400  years  to  find  the  value  of  Jean  d'Arc,  and  to-day, 
throughout  all  France,  they  are  erecting  beautiful  monuments  to 
her  memory;  and  from  the  ashes  of  Jean  d'Arc  phoenix-like  will 
yet  arise  a  new  era  in  the  lives  of  the  women  of  France.  Gentle- 
men of  the  Convention,  I  ask  you  in  all  fairness  and  in  all  candor  for 
justice  to  yourselves  and  to  your  consciences.  The  Constitution  of 
our  country  to-day  blazes  the  star  of  hope  above  the  cradle  of 
every  poor  man's  child.  Should  the  lustre  of  that  star  be  less  bright 
on  account  of  the  sex  of  that  child?  Gentlemen  of  the  Convention, 
the  day  has  come  when  the  women  of  our  State  do  not  seek  your 
sympathy  or  ask  your  pity.  They  plead  for  justice. 

Mr.  Moore  —  Mr.  President  and  Gentlemen  of  the  Convention : 
During  the  sessions  of  this  Convention  we  have  received,  signed 
by  more  than  600,000  citizens  of  this  State  regardless  of  "  sex,  color, 
race  or  previous  condition  of  servitude,"  etc.,  petitions  worded  as 
follows : 

"  Gentlemen,  the  undersigned  citizens  of  the  United  States, 
twenty-one  years  of  age,  residents  of  the  State  of  New  York  and 

county  of ,  respectfully  pray  your  honorable  body  to  strike 

the  word  '  male  '  from  article  2,  section  I  of  the  Constitution,  and 
thus  secure  to  the  women  of  the  State  the  right  to  vote  on  equal 
terms  with  the  men,"  and  the  following  questions  were  asked  by  the 
petitioners: 

Mr.  President  and  Gentlemen  of  the  Constitutional  Convention, 
you  are  respectfully  asked  to  consider: 

Upon  what  reasonable  ground  the  disfranchisement  of  women 
rests? 

Is  there  not  in  moral,  educational  and  sanitary  questions  a  depart- 
ment of  government  which  belongs  to  woman's  sphere? 

Is  one  not  degraded,  whether  aware  of  it  or  not,  when  other 
people,  without  her  consent,  take  upon  themselves  the  power  to 
regulate  her  affairs? 

Is  it  not  unnatural  and  unjust  to  impose  restrictions  upon  human 
beings,  which  no  age,  no  wisdom,  no  fitness  and  no  effort  can 
remove? 

If,  as  alleged,  women  are  already  represented  by  men,  when  was 
the  choice  made,  and  do  law  and  the  Constitution  recognize  such 
representation? 

Is  not  taxation  without  representation  tyranny? 


214  REVISED  RECORD.  [Wednesday, 

Is  it  not  true  that  legislation  is  always  in  favor  of  the  legislating 
class? 

Will  not  the  franchise  give  to  women  "  equal  pay  for  equal 
work?" 

Suppose  that  a  majority  of  the  women  of  the  State  do  not  wish  to 
vote,  is  that  just  reason  for  depriving  of  her  representation  even  one 
woman  who  is  taxed? 

Is  not  the  usurpation  of  sex  a  form  of  caste,  based  upon  the 
tyrannical  theory  that  "  might  makes  right?  " 

Have  these  questions  been  answered  by  the  opponents  of  this 
measure? 

In  my  opinion,  Mr.  President,  none  of  these  questions  have  been 
satisfactorily  answered  by  them,  and,  in  speaking  to  this  question, 
I  desire  to  call  attention  to  our  present  Constitution.  The  princi- 
ples upon  which  the  government  of  this  State  is  founded,  is  the 
government  of  all  the  people  by  a  majority  thereof.  The  preamble 
of  the  present  Constitution  reads  as  follows : 

"  We,  the  People  of  the  State  of  New  York,  grateful  to  Almighty 
God  for  our  freedom,  in  order  to  secure  its  blessings,  do  establish 
this  Constitution." 

Upon  the  face  of  it  this  preamble  would  seem  to  declare  that  all 
the  people  of  the  State  had  united  in  establishing  this  Constitution, 
and  in  section  i  of  article  i,  the  same  Constitution  says:  "  That  no 
member  of  this  State  shall  be  disfranchised;"  and  yet,  section  i  of 
article  2  declares  that  "  every  male  citizen  of  the  age  of  twenty- 
one  years,  who  shall  have  been  a  citizen  for  ten  days  and  an  inhab- 
itant of  this  State  one  year  next  preceding  an  election,  and  the  last 
four  months  a  resident  of  the  county,  and  for  the  last  thirty  days 
a  resident  of  the  election  district  in  which  he  may  offer  his  vote, 
shall  be  entitled  to  a  vote  at  such  election  in  the  election  district  of 
which  he  shall  at  the  time  be  a  resident,  and  not  elsewhere,  for  all 
officers  that  now  are  or  hereafter  may  be  elected  by  the  people,  and 
upon  all  questions  which  may  be  submitted  to  the  vote  of  the 
people." 

Thus  we  see,  Mr.  President,  the  first  declaration  invoking  the 
name  of  Almighty  God,  and  the  first  section  of  article  i  declaring 
that  no  member  of  this  State  shall  be  disfranchised  and  section  i, 
article  2,  in  defining  the  qualifications  of  voters,  this  Constitution, 
enacted  by  the  men  people  as  a  Constitution  of  the  whole  people, 
and  professing  to  be  anxious  that  no  member  of  this  State  shall 
be  disfranchised,  literally  contradicts  itself  in  declaring  that  only 
male  citizens  shall  have  the  right  to  the  elective  franchise.  Begin- 
ning with  the  most  hypocritical  declaration  of  gratitude  to  Almighty 


August  8.]  CONSTITUTIONAL  CONVENTION.  215 

God  for  our  freedom,  in  the  name  of  all  the  people  of  this  State,  but 
as  eventually  proven,  only  the  men  people,  usurping  the  power 
and  functions  of  the  whole  people,  it  proceeds  immediately  to  limit 
and  confine  the  most  sacred  functions  of  citizenship  to  the  male 
citizen.  Ignoring,  by  this  declaration,  the  rights  of  the  conceded 
majority  of  citizens  of  this  State,  depriving  them  of  what,  if  not  an 
inherent  right,  should  be  a  right  granted  by  the  State  to  every 
citizen  in  it,  regardless  of  sex,  is  it  not  time,  then,  that  such  a  Con- 
stitution should  be  amended,  abolishing  such  a  discrimination? 

Mr.  President,  in  the  discussion  of  this  question,  which,  in  a  nut- 
shell, is,  really,  shall  the  women  of  this  State  continue  to  be  disfran- 
chised, in  spite  of  the  declaration  in  section  I  of  article  2  that  no 
member  of  this  State  shall  be  disfranchised,  I  take  the  ground  that 
the  question  of  sex  has  nothing  to  do  with  the  problem.  Is  not  a 
woman  a  member  of  this  State?  There  is  no  greater  reason,  because 
she  is  a  woman,  if  she  comes  within  the  conditions  prescribed  by 
law  for  the  other  qualifications  of  voters,  that  she  should  be  disfran- 
chised at  an  election  for  elective  officers  in  this  State,  than  that  she 
should  be  deprived  of  a  vote  at  the  meeting  of  stockholders  of  a 
company  in  which  she  owns  stock,  because  she  is  a  woman;  or 
that  she  should  be  deprived  of  voting  at  a  church  meeting  because 
she  is  a  woman,  except  that  the  man-made  law  arbitrarily  prescribes 
and  limits  the  functions  of  voting  at  public  elections  in  this  State 
to  male  citizens  of  this  State.  The  only  persons  who  are  excluded 
directly  by  law  from  exercising  the  right  of  voting  are  those 
described  in  section  i  of  article  2  of  the  Constitution  which  relates 
to  bribery,  and  those  guilty  of  the  commission  of  any  infamous 
crime,  those  making  wagers,  and  persons  described  as  lunatics  and 
idiots;  and  yet,  by  limiting  the  voting  to  male  citizens,  you  literally 
make  the  section  read: 

Those  guilty  of  bribery,  of  committing  infamous  crimes,  of 
making  wagers,  lunatics,  idiots  and  women  shall  not  vote  in  this 
State.  In  the  name  of  all  that  is  decent,  sacred  and  fair,  why  do 
you  class  your  mothers,  wives  and  daughters  with  these  infamous, 
incapable  and  imbecile  classes?  We  have  as  the  organic  law,  in  the 
most  solemn  manner  in  our  present  Convention,  a  deliberate  insult 
to  our  women  by  classing  them  with  these,  an  insult  which,  if 
pressed  upon  them  by  any  individual,  would  be  resented  by  you 
personally  as  a  gross  insult  to  the  women  of  your  household. 
Why  the  inconsistency?  Why  should  we  continue  such  a  political 
classification?  Hon.  George  William  Curtis,  one  of  the  most  dis- 
tinguished men  of  the  State,  in  his  great  speech  in  the  Constitu- 
tional Convention  of  1867,  said,  upon  this  subject: 


216  REVISED  RECORD.  [Wednesday, 

"  I  wish  to  know,  sir,  and  I  ask,  in  the  name  of  political  justice 
and  consistency  of  this  State,  why  is  it  that  half  of  the  adult  popu- 
lation, as  vitally  interested  in  good  government  as  the  other  half, 
can  own  property,  manage  estates,  and  pay  taxes,  who  discharge 
all  the  duties  of  good  citizens,  and  are  perfectly  intelligent  and 
capable,  are  absolutely  deprived  of  political  power  and  classed  with 
lunatics  and  felons?  ''The  boy  will  become  a  man  and 
a  voter;  the  lunatic  may  emerge  from  the  clouds  and 
resume  his  rights;  the  idiot,  plastic  under  the  tender  hand 
of  modern  science,  may  be  molded  into  the  full  citizen; 
the  criminal,  whose  hand  still  drips  with  the  blood  of  his  country 
and  of  liberty,  may  be  pardoned  and  restored;  but  no  age,  no 
wisdom,  no  public  service,  no  effort,  no  desire,  can  remove  from 
woman  this  enormous  and  extraordinary  disability.  Upon  what 
reasonable  grounds  does  it  rest.  Upon  none  whatever.  It  is 
contrary  to  natural  justice,  and  to  the  acknowledged  and  traditional 
principles  of  the  American  government,  and  to  the  most  enlight- 
ened political  philosophy.  The  absolute  exclusion  of  women 
from  political  power  in  this  State  is  simply  usurpation. 
The  historical  fact  is  that  the  usurpers,  as  Gibbon  calls 
them,  have  always  regulated  the  position  of  women  by  their 
own  theories  and  convenience.  The  barbaric  Persian,  for 
instance,  punished  an  insult  to  the  woman  with  death,  not  because 
of  her,  but  of  himself.  She  was  part  of  him.  And  the  civilized 
English  Blackstone  repeats  the  barbaric  Persian,  when  he  says  that 
the  wife  and  husband  forms  but  one  person  —  that  is  the  husband." 

Mr.  President,  these  eloquent  words  were  true  then  —  they  are 
true  to-day;  but,  while  Mr.  Curtis,  in  1867,  could  only  claim  one- 
half  the  adult  population  of  the  State,  I  now  can  claim  it  for  more 
than  70,000  above  the  half. 

Upon  what,  then,  is  this  restriction  founded?  Obviously,  upon 
the  condition  of  sex  only  —  the  word  "male"  acting  as  a  disfran- 
chisement  of  women.  There  can  be  no  other  possible  ground 
for  anti-suffrage,  and  that  is  based  upon  the  organic  physical  dif- 
ference of  the  two  sexes,  and  for  no  other  reason.  Simply  because 
she  is  a  woman.  Not  upon  difference  of  character,  intellect  or  prop- 
erty qualifications,  and  if  not  upon  these  what  have  you  left  but  a 
sex  basis? 

Will  you  who  speak  for  anti-female  suffrage  for  the  reason  that 
a  woman  should  not  vote  because  she  is  a  woman,  tell  me,  suppose 
both  men  and  women  voted  now  at  any  general  election,  would 
there  be  an  organic  difference  in  those  votes,  in  those  ballots? 
Could  one  be  male  and  the  other  female,  because,  forsooth,  some  of 


August  8.]  CONSTITUTIONAL  CONVENTION.  217 

them  were  cast  by  women  and  some  of  them  by  men?  Could  the 
most  acute  argus-eyed  anti-female  suffragist,  who  believes  that 
home  suffrage  through  the  man  is  good  enough  for  the  woman, 
possibly  discern  between  male  and  female  votes,  when  they  came 
to  be  counted,  unless  designated  by  statute  by  some  arbitrary  sign? 
Obviously  not.  The  objection,  then,  to  a  female  vote  as  such,  is 
groundless,  has  no  reasonable  or  even  decent  foundation  to  rest 
upon. 

Is  the  objection,  then,  on  the  ground  of  her  lack  of  intellectual 
faculties,  perception,  mental  consciousness  or  want  of  capability  to 
logically  reason  as  to  public  measures  or  results  molded  in  the 
casting  of  her  vote?  We  say,  Mr.  President,  that  the  educational 
history  of  woman  does  not  bear  out  this  assertion.  Indeed,  the 
intellectuality  of  women  has  been  so  far  developed  that  in  many 
instances  they  have  exhibited  reasoning  faculties  superior  to  those 
of  men.  This  is  illustrated  in  the  reports  from  Cambridge  Uni- 
versity (England),  where  there  were  eighty-three  women  students 
last  year,  and  twenty-one  of  them  carried  off  the  first-class  honors. 

"  In  the  mathematical  tripos,  Miss  Johnson  occupied  the  first 
division  of  the  first  class  alone,  no  man  being  able  to  obtain  that 
exalted  rank.  Another  woman  took  a  first  class  in  moral  science. 
In  modern  languages  six  women  were  placed  in  the  first  class,  and 
Miss  Purdie  is  the  most  distinguished  classical  student  in  Newham 
College.  It  is  observed  that  the  proficiency  of  women  in  modern 
languages  may  be  explained  by  their  natural  faculty  in  all  lan- 
guages, but  that  does  not  account  for  their  superiority  in  classics, 
which  calls  the  reasoning  faculties  into  play,  and  in  the  higher 
mathematics,  which  require  logic." 

I  call  upon  the  thousands  of  female  teachers,  of  female  newspaper 
writers  and  editors,  upon  authors,  essayists,  upon  female  mathe- 
maticians, upon  poets,  upon  astronomers,  upon  inventors,  of  whom 
there  are  hundreds  to-day  (though  they  used  to  say  a  woman  had 
no  inventive  genius),  upon  lawyers,  upon  doctors,  upon  ministers, 
upon  that  almost  innumerable  host  of  females,  graduates  of  our 
common  and  High  Schools,  seminaries  and  colleges,  who  have 
advanced  in  every  profession  and  business  requiring  intellectual 
force  and  good  judgment  and  tact  as  the  motive  of  power  for  its 
successful  achievements,  to  witness  that  the  assertion  of  lack  of  intel- 
lectual qualifications  as  the  reason  for  the  refusing  them  the  ballot, 
is  false,  misleading  and  unjust.  What  do  you  want  in  the  ballot- 
opinion?  Is  it  not  private  opinion  publicly  expressed,  intelligently 
dictated  by  an  intelligent  mind  and  cast  by  the  hand,  the  servant  of 
such?  And  has  not  woman,  as  a  class,  all  these  qualifications  as 


218 


REVISED  RECORD. 


[Wednesday, 


much,  if  not  more,  than  man?  Do  you  want  the  property  repre- 
sentation in  the  ballot?  Do  you  say  that  she  has  not  property, 
hence  she  ought  not  to  vote?  Let  us  see  how  that  stands  in  this 
State,  so  far  as  statistics  are  available,  from  the  following-named 
counties: 


COUNTY. 

Assessed  valua- 
tion of  prop- 
erty owned  by 
women  . 

Jg 

'3  l! 

S£5 

S?! 
5  a  o. 
J5 

Number  of  cities 
and  towns  not 
reported. 

Number  of  worn- 
i-n  taxed. 

Total  of  assessed 
viilmitiou  of 
property. 

Albany  

$3,224,734 

1 

9 

645 

$102,  859,  1  1  1 

Allegany  

2,117,731 

27 

2 

2,206 

14,914,843 

Broome  

5,550,712 

16 

1 

2,794 

32,  767,  259 

Cattaraugus  

2,  799,  548 

34 

2,  599 

19,094  442 

6.  160.  424 

24 

3,799 

30  687  271 

Chautauqua. 

4  618,609 

26 

1 

4,627 

29,  142  221 

678,  925 

6 

6 

628 

22,175,504 

Chenango  

2,  023,  307 

6 

15 

791 

16,  737,  267 

Clinton.. 

1,212,207 

14 

1,178 

6  758  399 

Columbia.             

4,  054,  397 

19 

2,135 

24,981  659 

Cortland      

965,  152 

9 

6 

1,138 

8,  705,  950 

Delaware  

530,  485 

5 

14 

542 

13,381,873 

Dutchess  .               .... 

4,811,053 

16 

5 

2,552 

47,  697,  273 

Erie                                 .  .     . 

29,  670,  073 

11 

15 

11,030 

263,  439,  731 

Essex.  .  .        

625,  429 

8 

10 

535 

11,174,540 

Franklin  

644,  204 

4 

15 

463 

9,  178,  101 

Fulton  . 

971,611 

3 

8 

777 

10,  103,  932 

2  654,511 

13 

1,549 

19  248,  039 

Greene  

2,  158,  081 

7 

7 

1,107 

13,  735,  052 

Hamilton  ... 

1,724,385 

Herkimer    

891,  267 

5 

14 

781 

17,963,910 

Jefferson    

2,  791,  100 

8 

14 

2,  225 

84,  354,  971 

Kings  

114,492,151 

28,283 

525,736,011 

Lewis.  .  .              .          

199,575 

2 

ii 

204 

7.  250,  541 

Livingston  

2,  984,  450 

11 

6 

1,318 

26,  «82,  303 

Madison  

2,5,0,020 

8 

6 

1,645 

19,  728,  40& 

Monroe  

83,  003,  305 

17 

3 

12,  699 

140,016.498 

Montgomery 

1,909,020 

1 

10 

673 

26,  773,  084 

New  York  . 

Niagara              

5  390  909 

14 

3,079 

36.  930.  708 

Oneida  .              

5,375  006 

10 

19 

2,765 

47,927,309 

Onondaga.  .  .   

13,187,260 

10 

11 

6,916 

85,  592,  452 

«  >ntario  .     

4,  968.  382 

9 

7 

1,891 

34,  137,  883 

Orange              .  .  .  

2,  026,  558 

7 

15 

1,492 

38,235,661 

Orleans  

2,529,631 

10 

1,312 

17,327,224 

Oswego  

3,  482,  503 

31 

1 

3,421 

25,653,913 

Oti*ego  

1  969,590 

12 

12 

1,237 

18,  785,  660 

Putnam  

286,830 

1 

5 

126 

7,277,169 

Queens  

6,436,181 

6 

1 

5,189 

53,  050,  559 

Rensselaer    

1  445  683 

4 

18 

533 

78,981.383 

Richmond 

4  027  275 

5 

2,313 

19,913,3-26 

Rockland  .      .  .          .... 

714  034 

4 

1 

562 

11,957,286 

St.  Lawrence  

2  686  250 

18 

19 

4,464 

34,810.193 

Saratoga  

139  638 

1 

19 

94 

21,104.236 

Scbenectady  

1  782  866 

4 

2 

935 

15,277,520 

Schoharie  

1  077  931 

10 

887 

12,876,550 

Schoyler            .        

1  091  110 

8 

904 

6,  72N,  889 

Seneca     .     .  .        

1  677  595 

7 

8 

858 

17,519,909 

Steuben  

318  466 

5 

30 

217 

31,912,276 

Suffolk..           

2,413  975 

10 

2,569 

20,216,331! 

Sullivan 

225  337 

7 

8 

447 

6,617,562 

Tioga  

1  104  385 

4 

5 

656 

13,  353,  303 

Tompkins  

1  399  765 

g 

2 

1,492 

11,093,785 

Ulster    

4  362  800 

21 

3,075 

27.  559,  470 

Warren               ... 

1  096  987 

3 

8 

687 

8,108,112- 

Washington  

1  996,804 

14 

1 

1,661 

17,  586,  084 

Wayne  

2  110  401 

9 

6 

1,441 

20,  7(-2,  230 

Westchester   

6  203  5S9 

7 

6 

1,780 

85,080,039- 

Wyoming  

2  610  640 

16 

1,700 

14.  947,  318 

Yiites 

939  903 

3 

6 

648 

11,089,283 

Total   

$320  324  172 

571 

389 

143,715 

$2,  853,  296.  72!> 

August  8.]  CONSTITUTIONAL  CONVENTION.  219 

These  figures  are  but  from  three-fifths  of  all  the  towns  in  this 
State  outside  of  New  York  city,  the  certified  copies  of  the  assessors' 
rolls  in  each  of  the  towns  certified  to,  stating  that  women  in  three- 
fifths  of  the  outside  towns,  are  actually  paying  taxes  on  assessed 
valuation  of  $320,524,172.  The  total  number  of  women  reported  as 
taxed  in  three-fifths  of  these  towns  is  143,715.  The  total  assessed 
valuation  of  the  entire  State,  outside  of  New  York  city,  by  the 
Comptroller's  report  of  1894,  is  $2,353,296,735. 

No  report  could  be  obtained  from  New  York  city,  but  Brooklyn 
was  over  one-fourth  the  assessed  valuation.  Careful  estimates  of 
New  York  city  will  make  the  amount  certainly  one-third  the 
assessed  valuation.  Several  large  cities  were  left  out  in  this  valua- 
tion, but  later  valuations  of  Troy  and  Albany  were  received,  amount- 
ing to,  in  Troy,  $17,429,720;  Albany,  $15,093,632.  The  assessors' 
rolls  cannot  show  the  thousands  of  voting  men  who  own  no  prop- 
erty and  yet  vote,  neither  can  they  show  the  thousands  of  women 
whose  property  is  assessed  in  their  husbands'  names,  by  careless 
assessors,  but  in  spite  of  the  fact  that  thousands  of  men  have  no 
property,  they  are  concededly  interested  in  the  State,  its  govern- 
ment, its  finances,  taxation  and  politics  as  those  who  have.  Why 
not  then  concede  to  these  women  taxpayers  and  non-taxpayers  the 
same  interest  in  the  State  that  you  do  to  these  men?  Their  intelli- 
gence and  property  qualifications  conceded,  what  next  do  you 
require  as  a  requisite  for  exercising  the  right  of  voting?  She  is 
intellectual,  she  pays  taxes,  the  same,  at  least,  as  men,  what  else  do 
you  require?  Loyalty  and  patriotism  to  the  State? 

Need  I,  Mr.  President,  open  again  the  books  of  the  past  and  read 
to  you  the  historical  record  of  patriotic  women,  whose  loyalty,  whose 
magnificient  heroism  on  fields  of  battle,  whether  with  the  Hebrew 
Judith,  Boadicea,  the  English  Queen,  Joan  of  Arc,  the  French 
maid,  rescuing  her  country  and  recrowning  her  king,  or  with  the 
Clara  Bartons,  Bickerdyes,  Andrews  and  hosts  of  noble,  brave  and 
loyal  women,  many  of  whom  gave  their  lives  on  fields  of  battle  and 
in  hospitals  as  truly  as  did  any  man  for  the  great  sacred  cause  of 
liberty  and  patriotism?  Nor  need  we  go  only  there  to  find  loyalty 
and  patriotism,  but  in  the  homes  where  the  mother  gave  her  sons  to 
her  country,  and  the  wife  her  husband  for  that  country,  only 
regretting  that  they  themselves  were  prevented  from  going. 

But,  you  say,  governments  are  founded  on  force,  and  force  means 
fight,  and  as  it  is  alleged  that  women  cannot  fight  they  have  no 
means  to  enforce  the  laws  they  might  make,  and  hence  they  should 
not  vote.  Is  government  founded  on  force?  Is  it  not  rather  an 
opinion  expressed  at  the  ballot-box.  But  take  it  for  granted  that 


220  REVISED  RECORD.  [Wednesday, 

the  men  have  to  do  the  fighting,  how  does  that  alter  the  case  for 
women?  Military  age  for  the  common  soldier  is  from  eighteen  to 
forty-five  years,  and  if  the  rule  was  applied  to  men  in  this  Conven- 
tion, "  No  soldiers,  no  vote,"  how  many  members  of  this  Conven- 
tion could  vote?  Mr.  President,  the  argument,  "  No  bayonet,  no 
vote,"  is  simply  a  subterfuge,  and  is  not  borne  out  by  facts.  When- 
ever, in  the  course  of  events,  women  have  been  obliged  to  take  part 
in  war,  they  have  shown  themselves  capable  of  enduring  longer 
marches,  as  in  some  of  our  Indian  wars,  defending  Sarragosa,  in 
Spain,  and  Jerusalem,  in  Palestine,  managing  artillery,  as  Molly 
Pitcher,  at  Monmouth,  did  in  that  revolutionary  battle,  and  as 
spies  in  war,  making  a  success  far  beyond  that  of  men,  and  more 
than  that,  of  inspiring  the  men  to  renewed  and  often  successful 
endeavors  after  the  men  had  given  up  the  fight.  But  women  have 
shown  themselves,  in  our  State  and  the  goodly  year  of  to-day 
as  capable  of  bearing  arms,  going  through  the  drills,  marching, 
countermarching,  and  performing  military  evolutions  with  even 
more  celerity  than  an  equal  number  of  men  of  the  same  age.  The 
object  lesson  is  right  over  your  heads,  gentlemen,  on  the  fourth  floor 
of  this  Capitol.  If  you  go  up  there  you  will  find  many  photographs 
of  the  schools  —  one  of  the  Fort  Plain  Liberal  Institute  —  and  there 
you  will  see  photographs  of  both  male  and  female  soldiers  drilling 
as  citizen  soldierly  are  required  to  do.  I  was  unaware  of  the  exist- 
ence of  such  an  institution  for  the  military  co-education  of  the  sexes, 
and  I  immediately  commenced  to  investigate.  An  interview  with 
the  principal  informed  me  that  the  women  bore  the  fatigue  of  the 
drill  equally  as  well  as  the  men,  and  as  such  tentative  soldiers  they 
were  a  great  success.  A  letter  to  the  Secretary  informs  me:  "  That 
as  far  as  the  girls'  ability  to  drill,  it  is  equal  to  that  of  the  boys  as 
was  shown  in  a  contest  between  the  two  companies." 

But  the  opponents  of  this  amendment  say,  the  place  for  the 
woman  is  in  the  home,  hence  she  should  not  vote.  Is  it,  indeed? 
As  well  might  you  say,  that  the  place  of  the  man  is  in  the  store,  in 
the  shop,  in  the  field,  in  the  office,  hence  he  should  not  vote.  Why, 
Mr.  President,  what  is  the  State  but  an  aggregation  of  homes  which 
are  the  cause  of  all  business. 

As  has  been  said  by  an  able  writer,  Rev.  Samuel  J.  May,  "  The 
true  family  is  the  type  of  the  State.  It  is  the  absence  of  the  feminine 
from  the  conduct  of  the  governments  of  the  earth  that  makes  them 
more  or  less  savage.  The  State  is  now  in  a  condition  of  half 
orphanage.  There  are  fathers  of  the  State,  but  no  mothers." 
As  there  can  be  no  true  private  home  without  the  womanly  influ- 
ence, so  the  great  public  home  —  the  State  —  without  that  influence 


August  8.]  CONSTITUTIONAL  CONVENTION.  221 

of  women  in  conjunction  with  men,  loses,  by  lack  of  it,  the  full  com- 
plement of  intelligence,  loyalty,  patriotism  and  public  interest  in  the 
State  to  which  it  is  entitled,  and  which  can  only  come  from  the 
exercise  of  full  citizenship  by  all  the  members  of  the  State. 

Ours  will  be  the  State  of  the  women  only,  Mr.  President,  when 
they  can  say  with  the  men,  we  are  voters;  we  have  the  same  rights, 
the  same  power  as  voters  as  the  men.  The  interest  a  man  takes  in 
the  State  is  in  proportion  to  his  right  as  a  voter  under  its  laws,  and 
he  that  is  any  less  than  a  voter  is  simply  a  vassal,  subject  to  the 
will  and  caprice  of  somebody,  and  from  whom  he  has  absolutely  no 
redress,  and  to  whom  he  owes  allegiance.  His  interest  is  gone. 
The  State  is  not  his,  but  the  other  man's.  But  give  him  a  voting 
chance  and  all  is  changed.  Under  the  mantle  of  citizenship,  there 
falls  upon  him  a  sense  of  power,  responsibility  and  pride  in  his  State, 
as  his.  Just  so  will  it  be  with  woman.  Give  her  the  full  enfran- 
chisement, and  with  it  will  come  the  added  public  interest  in  public 
affairs  for  better  laws,  better  morals,  greater  elevation  of  character 
in  both  private  and  public  life,  which  alone  make  the  true  life  of 
the  State  possible  and  continuous. 

Mr.  President,  a  letter  addressed  to  me  and  signed  by  such  men 
as  Russell  Sage,  Dr.  Charles  H.  Eaton,  Dr.  Faunce,  Frederick  R. 
Coudert,  R.  Heber  Newton,  Edgar  Fawcett,  Wm.  Dean  Howells, 
John  D.  Rockefeller,  Thomas  L.  James  and  many  others,  sympa- 
thize with  what  I  have  said  upon  this  subject  in  even  stronger  terms : 

"  The  women  of  this  State  pay  taxes  upon  hundreds  of  millions 
of  dollars  yet  have  no  voice  in  directing  the  expenditure  of  public 
funds. 

"  The  women  of  this  State  contribute  by  their  industry  to  the 
wealth  of  the  community,  yet  constantly  work  at  a  disadvantage 
when  competing  with  political  superiors. 

"  The  women  of  this  State  have  the  same  vital  interest  in  public 
affairs  as  have  their  fathers,  husbands,  brothers  and  sons.  They 
have  been  emancipated  from  personal  and  legal  subjection  to  the 
men  of  their  own  families,  and  they  are  not  willing  to  remain  sub- 
jected to  the  political  sovereignty  of  all  other  men.  Their  personal 
rights  have  been  secured  to  them  by  successive  acts  of  legislation. 
They  now  pray  for  civil  rights,  which  are  the  natural  complement 
of  personal,  industrial  and  legal  independence." 

The  public  press  have  also  within  a  few  days  spoken  in  no  uncer- 
tain tone,  and  I  beg  to  quote  only  two  or  three. 

The  Albany  "  Journal  "  warns  the  Convention  not  to  reject  the 
amendment.  The  New  York  "  Recorder  "  speaks  its  mind  most 
decidedly,  as  follows:  "It  has  been  decided  by  the  Committee  on 


222  REVISED  RECORD.  [Wednesday, 

Suffrage  of  the  Constitutional  Convention  to  report  adversely  on  the 
petition  of  the  most  intelligent  women  of  this  State  that,  as  women, 
they  shall  be  admitted  to  equal  privileges  with  men  along  the  whole 
line  of  citizenship.  This  action  of  the  committee  is  not  in  the 
interest  of  better,  purer  and  higher  government  of  all  people.  It  is, 
on  the  contrary,  a  block  on  the  wheels  of  advancement  and  prog- 
ress. The  question  has  been  argued  threadbare,  and  every  plea 
presented  against  it  has  been  left  without  a  logical  leg  to  stand  on. 
There  are  few  departments  of  human  endurance  in  which  woman 
is  not  now  proficient  to  act.  In  brain  power,  she  is  the  equal  of 
that  sex  which  arrogates  to  itself  fellowship  and  supremacy. 
The  Recorder  advocates  full  suffrage  for  women,  because  it 
believes  that  the  conferring  of  it  will  exalt  woman  and  give  us  in 
the  next  generation,  and  in  -the  generations  to  follow,  the  highest 
type  of  citizenship  the  world  has  ever  had.  In  these  seething  days 
of  unrest  and  revolution  of  all  kinds,  the  best  and  most  conserva- 
tive course  in  all  society  should  be  invoked  to  save,  rescue  and 
redeem  it.  That  influence  is  the  influence  of  women.  At  the  pres- 
ent time,  she  is  the  great  conservator  of  religion,  no  matter  what 
the  church  to  which  she  belongs  may  be.  Her  influence  in  the 
State  would  be  equally  beneficient,  but  to  give  it  full  scope  and 
swing  she  must  be  emancipated  from  the  vassalage  in  which  she  is 
held.  The  moral  force  that  has  saved  the  church  must  be  utilized 
to  save  the  State.  The  Convention  should  put  this  report  of  its 
Suffrage  Committee  in  the  waste  basket  and  submit  the  question 
to  the  people."  (Applause.) 

We  have  in  that  grandest  of  all  word-painting,  the  picture  of 
a  complete  civilization  in  the  Revelation  in  Holy  Writ,  of  the  holy 
city,  and  the  length  and  breadth  and  the  height  of  it  are  equal, 
nothing  of  its  component  parts  left  out,  and  small  wonder  there 
that  the  walls  were  of  jasper  and  the  city  like  unto  pure  gold  and 
the  foundations  precious  stones,  and  each  several  gate  one  pearl, 
and  the  kings  of  the  earth  do  bring  their  glory  and  honor  into  it, 
and  they  shall  bring  the  glory  and  honor  of  the  nations  into  it. 
That  day  and  city  so  long  foretold  is  .coming,  Mr.  President. 
The  climbing  of  the  race  towards  this  ineffably  glorious  civilization 
is  slow,  but  individuals  and  communities  are  fast  learning  that  the 
day  and  the  city  will  hasten  only  as  each  goes  onwards  in  the 
march  for  human  rights  and  human  progress  for  all  the  members 
of  the  State.  I  ask  this  Convention  for  itself,  for  the  State  as  a 
State,  not  to  delay  the  coming  of  that  perfect  civilization  by  cling- 
ing to  the  dead  ideas  of  the  past,  but  to  take  this  long  step  forward 
now  —  which  is  equal  rights  for  every  member  of  this  State. 


August  8.]  CONSTITUTIONAL  CONVENTION.  223 

Permit,  then,  this  great  question  to  go  to  the  people.  Men  of 
this  Convention,  you  are  making  history  now,  for  the  politics  of 
to-day  is  the  history  of  the  future.  See  to  it,  then,  that  you  make 
it  on  the  side  of  the  better  citizenship,  which  this  measure  will 
certainly  insure.  (Applause.) 

Mr.  Cookinham  —  Mr.  President,  there  are  several  gentlemen 
who  have  manifested  a  desire  to  address  the  Convention  upon  this 
subject.  They  do  not  desire  to  speak  this  evening.  As  the  hour 
is  late,  and  as  by  special  order  this  matter  will  be  before  the  Con- 
vention to-morrow  evening,  I  move  that  the  Convention  do  now 
adjourn.  . 

The  President  put  the  question  on  the  motion  of  Mr.  Cook- 
inham, and  it  was  determined  in  the  affirmative,  whereupon  the 
Convention  adjourned  to  August  9,  at  ten  A.  M. 


Thursday,  August  9,  1894. 

The  Constitutional  Convention  of  the  State  of  New  York  met 
at  the  Assembly  Chamber,  at  the  Capitol,  Albany,  N.  Y.,  August  9, 
1894. 

President  Choate  called  the  Convention  to  order. 

The  Rev.  G.  M.  Heindel  offered  prayer. 

The  President  —  Before  we  proceed  with  the  special  order 
assigned  for  this  morning,  is  there  any  particular  business  that  any 
delegate  has  to  bring  before  the  Convention?  • 

Mr.  McKinstry  —  Mr.  President,  I  would  like  to  introduce  a 
resolution. 

The  President  —  Unless  objection  is  made,  the  resolution  will 
be  considered. 

The  Secretary  read  the  resolution  as  follows: 

R.  165. —  Resolved,  That  the  Secretary  request  from  the  clerk 
of  each  county  in  the  State  answers  to  the  following  questions: 

First.  Has  there  been  any  defalcation  by  any  county  treasurer 
in  your  county  during  the  last  twenty  years,  and,  if  so,  state  the 
date  and  amount  of  such  defalcation? 

Second.  What  portion  of  such  defalcation  did  bondsmen  make 
good? 

Third.     How  many  terms  had  the  defaulting  treasurer  served? 

The  President  —  This  would,  under  the  rule,  go  to  the  Com- 
mittee on  County,  Town  and  Village  Officers. 


224  REVISED  RECORD.  [Thursday. 

It  was  so  disposed  of. 

Mr.  Marks  —  Mr.  President,  Mr.  J.  I.  Green  requests  me  to  ask 
that  he  be  excused  for  the  balance  of  the  week,  as  he  is  called 
away. 

The  President  put  the  question  on  excusing  Mr.  J.  I.  Green  from 
attendance,  and  he  was  so  excused. 

Mr.  C.  B.  McLaughlin  —  Mr.  President,  are  reports  now  in 
order? 

The  President — Unless  objection  is  made.  It  seemed  to  me 
that  before  going  into  the  special  business  of  the  day,  unless  objec- 
tions were  made,  those  matters  could  be  gone  through  with. 

Mr.  C.  B.  McLaughlin  —  I  have  a  report  from  the  Committee  on 
County,  Town  and  Village  Government. 

The  President  —  The  Secretary  will  read  the  report  of  the 
committee. 

The  Secretary  read  the  report  as  follows: 

Mr.  C.  B.  McLaughlin,  from  the  Committee  on  County,  Town 
and  Village  Government,  to  which  was  referred  several  proposed 
constitutional  amendments  relating  to  sections  22  (being  printed 
No.  341)  and  23  (being  printed  No.  250)  of  article  3,  and  sections  9 
(being  printed  Nos.  93  and  237)  and  n  (being  printed  Xo.  237)  of 
article  8;  also  section  22  of  article  3  (being  printed  No.  55),  and  a 
proposed  new  section  to  article  8,  to  be  known  as  section  12  of  the 
Constitution  (being  printed  No.  51),  respectfully  reports  that  the 
committee  has  had  under  consideration  and  has  given  to  the  several 
propositions  referred  to  it  careful  consideration,  and,  as  a  result  of 
its  deliberations,  reports  that,  in  its  judgment,  no  changes  should  be 
made  to  the  present  Constitution,  as  contemplated  in  the  several 
proposed  constitutional  amendments  heretofore  referred  to  it. 

The  President  —  This  is  the  best  report  that  has  been  received 
from  any  committee.  (Applause.) 

Mr.  C.  B.  McLaughlin  —  Mr.  President,  I  move  the  adoption  of 
the  report. 

The  President  put  the  question  on  the  adoption  of  the  report,  and 
it  was  determined  in  the  affirmative. 

Mr.  Davis  —  Mr.  President,  I  ask  to  be  excused  from  the  session 
to-morrow. 

The  President  put  the  question  on  the  request  of  Mr.  Davis 
to  be  excused  from  attendance,  and  he  was  so  excused. 

Mr.  Crosbv — Mr.  President,  in  the  absence  of  the  chairman  of 


August  p.]  CONSTITUTIONAL   CONVENTION.  225 

the  committee,  'I  desire,  as  chairman  pro  tern.,  to  move  that  the 
proposed  amendment  to  the  Constitution,  introduced  by  Mr.  E.  R. 
Brown,  be  printed  and  placed  upon  the  desks  of  the  members. 
The  President  —  Is  it  one  that  has  already  been  received? 

Mr.  Crosby  —  It  is  not.  It  has  been  presented  to  the  committee, 
and  many  parts  of  it  adopted  by  the  committee.  For  the  purpose 
of  the  use  of  the  committee  and  to  inform  the  gentlemen  of  the 
Convention  of  the  sentiment  of  the  committee,  we  thought  it  advis- 
able to  have  it  printed  and  placed  on  the  desks  of  the  members. 

The  President  put  the  question  on  printing  the  said  proposition, 
and,  it  being  determined  in  the  affirmative,  it  was  ordered  printed, 
with  introductory  number  as  O.  376,  proposed  constitutional 
amendment  to  amend  article  3,  relating  to  the  apportionment  of 
Senate  and  Assembly  districts. 

Mr.  M.  E.  Lewis  —  Mr.  President,  is  it  not  true  that  the  report 
of  the  Committee  on  Cities  was  made  a  special  order  this  morning 
immediately  after  the  reading  of  the  Journal? 

The  President  —  It  was. 

Mr.  M.  E.  Lewis  —  I  move  that  the  Convention  now  go  into  the 
Committee  of  the  Whole  on  the  report  of  the  Cities  Committee. 

The  President  put  the  question  on  the  motion  of  Mr.  M.  E.  Lewis, 
and  it  was  determined  in  the  affirmative. 

The  House  resolved  itself  into  Committee  of  the  Whole,  and 
Mr.  I.  S.  Johnson  resumed  the  chair. 

Mr.  Dean  —  Mr.  Chairman,  I  rise  to  withdraw  my  substitute  to 
the  pending  question.  I  do  this,  not  because  I  am  convinced  of 
any  fundamental  error  in  the  scheme,  for  it  is  based  upon  well- 
tried  principles  of  popular  government,  but  because  I  am  con- 
vinced that  it  is  impracticable  to  deal  with  the  question  intel- 
ligently in  the  Committee  of  the  Whole,  and  because  I  see  no  hope 
of  reaching  that  result  through  a  committee  which  has  committed 
itself  to  the  absurdity  of  proportional  representation,  and  which 
flatters  itself  that  it  has  been  cunning  enough  to  devise  a  plan 
which  will  be  of  party  advantage.  I  believe  in  home  rule.  I  take 
no  stock  in  the  idea  that  this  is  a  complex  question  or  that  it  takes 
any  very  high  order  of  talent  to  solve  the  problem.  Local  self- 
government,  applied  on  the  broad  basis,  which  characterizes  general 
self-government,  is  perfectly  feasible,  but  it  can  never  be  attained  by 
gentlemen  who  lack  the  courage  of  great  convictions,  and  who 
distrust  the  intelligence  and  the  integrity  of  the  masses.  The  plan 
15 


226  REVISED  RECORD.  [Thursday, 

which  I  have  suggested  takes  some  space;  it  is  practically  a  Con- 
stitution for  the  government  for  more  than  one-half  the  people  of 
this  State,  and  gentlemen  who  are  frightened  at  the  bugaboo  of 
legislations  in  the  Constitution  oppose  it  simply  because  it  is  long; 
as  a  matter  of  fact  it  contains  as  little  legislation  as  almost  any 
propostion  now  before  us.  It  lays  down  broad  principles  for  the 
government  of  cities,  leaving  to  the  several  municipalities  the  prob- 
lem of  their  own  salvation,  and  so  long  as  I  have  faith  in  human 
nature,  and  so  long  as  experience  demonstrates  the  wisdom  of  self- 
government,  I  shall  not  subscribe  to  the  doctrine  that  home  rule 
is  not  practicable,  or  that  it  can  be  attained  by  any  mere  jugglery 
committed  in  its  name.  Believing  in  this  proposition,  but  realiz- 
ing the  hopelessness  at  this  late  day  of  accomplishing  anything  of 
importance  in  this  direction,  knowing  how  futile  must  be  any 
attempt  on  the  part  of  practical  men,  who  have  been  chosen  by 
intelligent  constituencies,  to  get  a  hearing  before  the  Committee 
on  Cities,  so  long  as  there  is  a  theorist  or  a  professor  of  political 
ethics  within  reach  of  the  telegraph  wires,  I  submit  to  the  inevitable. 
I  ask  permission,  Mr.  Chairman,  lo  withdraw  my  proposed  substi- 
tute, and  trust  to  the  intelligence  of  this  Convention  to  deal  with 
this  three-months'  condensation  of  "  professorism  "  in  the  domain 
of  civil  government. 

The  Chairman  —  Is  there  any  objection? 
Mr.  M.  E.  Lewis  —  I  object. 

Mr.  Cochran  —  I  renew  my  motion  of  yesterday  that  Mr.  Dean 
be  allowed  to  withdraw  his  substitute. 

Mr.  M.  E.  Lewis  —  Does  not  that  require  unanimous  consent? 

The  Chairman  —  I  think  it  can  be  done  by  a  majority  vote.  It 
may  be  withdrawn  with  the  consent  of  the  Convention. 

The  Chairman  put  the  question  of  allowing  the  substitute  to  be 
withdrawn  and  it  was  determined  in  the  affirmative. 

The  Chairman  —  The  question  is  now  on  the  amendment  offered 
by  Mr.  Mulqueen  to  strike  out,  after  the  word  "council,"  in  line  16, 
page  4,  and  insert  in  lieu  thereof  the  following: 

The  mayor  of  any  city  may  remove  the  commissioner,  superin- 
tendent or  other  head  of  the  police  force  of  such  city  for  cause, 
upon  charges  preferred  before  him.  A  copy  of  such  charges  shall 
be  served  upon  the  official  or  officials  sought  to  be  removed,  and 
an  opportunity  afforded  him  or  them  to  be  heard  in  his  or  their 
defense.  Upon  such  a  removal  the  mayor  of  such  city  may  appoint 
the  successor  of  such  officer  or  officers  so  removed,  to  hold  office 


August  9.]  CONSTITUTIONAL  CONVENTION.  227 

until  the  expiration  of  the  term  of  office  for  which  such  officer  or 
officers  was  removed  when  originally  appointed. 

Mr.  Cochran  —  Mr.  Chairman,  am  I  not  correct,  sir,  that  we  have 
not  yet  disposed  of  section  i?  It  seems  to  me  that  we  must  first 
dispose  of  section  i,  and  all  amendments  that  are  pending  to  that 
section  before  we  take  up  the  subsequent  sections  of  the  proposed 
constitutional  amendment. 

The  Chairman  —  By  the  vote  of  the  committee,  the  whole  matter 
was  read  through  first,  and  there  seems  to  be  no  amendment  to 
section  i. 

Mr.  Cochran  —  I  understood  there  was  an  amendment  pending. 

The  Chairman  —  There  was  one  adopted,  but  there  is  none  now 
pending  as  the  Chair  understands.  . 

Mr.  Mulqueen  —  Mr.  Chairman,  I  ask  that  the  amendment  be 
passed  for  the  present,  as  there  are  some  gentlemen  I  understand 
who  desire  to  debate  the  whole  question. 

The  Chairman  —  Does  the  gentleman  withdraw  his  amendment 
for  the  present? 

Mr.  Mulqueen  —  I  ask  consent  to  pass  it  for  the  present. 

Mr.  J.  Johnson  —  I  hope  that  request  will  be  granted.  The  Com- 
mittee on  Cities  courts  the  fullest  debate. 

The  Chairman  —  Is  there  any  objection  to  this  being  laid  aside? 
If  not,  it  is  so  ordered. 

Mr.  Jenks  —  Mr.  Chairman,  I  make  the  usual  motion  to  strike 
out  the  first  section  of  this  proposed  amendment. 

The  Chairman  —  Mr.  Jenks  moves  to  strike  out  the  first  section 
for  the  purpose  of  debate. 

Mr.  Jenks  —  There  is  much  in  this  proposed  act  to  criticise; 
there  is  something  in  it  to  approve.  I  have  known  the  chairman 
of  the  committee  so  long  and  so  well  that  I  do  not  propose  to 
pose  here  as  his  candid  friend,  nor  do  I  seek  to  be  a  conspirator 
to  strike  down  the  great  Caesar  of  the  Cities  Committee  on  the 
very  floor  of  the  senate  house.  I  rather  quote  the  Scripture,  and 
say  in  the  words  of  the  Divine  Writ:  "And  Samuel  said  unto  Jesse, 
are  these  all  thy  children?  "  with  the  hope  that  later  he  may  bring 
forth  the  ruddy  and  strong  son  that  he  has  kept  in  reserve,  to  be 
anointed  and  accepted  of  the  Lord. 

Mr.  Chairman,  much  work  has  been  done  by  this  committee, 
and  this  report  and  proposed  amendment  may  be  said  to  be  the 
seal  of  the  committee,  that  is,  "  presumptive  evidence  of  considera- 
tion," although  many  of  those  whose  amendments  were  rejected 


228  REVISED  RECORD.  [Thursday, 

might  not  give  to  the  committee  the  definition  that  it  "  was  wax 
or  some  other  tenacious  substance  capable  of  receiving  an  impres- 
sion/' Whether  or  not  the  gentleman  is  proud  of  this  proposed 
amendment  I  do  not  know,  but  after  he  has  done,  perhaps  he 
will  procure  a  stencil,  and,  following  the  fashion  of  young  women 
who  write  in  autograph  albums,  he  will  mark  upon  the  very  front 
of  it:  "When  this  you  see,  remember  me."  (Laughter.) 

Now,  Mr.  Chairman,  I  propose  very  briefly  to  examine  the  var- 
ious sections.  The  first  simply  provides  laws  for  the  incorpora- 
tion of  new  cities.  In  the  words  of  Sir  Boyle  Roche,  I  ask,  "  What 
should  we  do  for  posterity,  for  what  has  posterity  done  for  us?  " 
The  question  of  to-day  is  of  the  old  cities,  and  I  am  disappointed 
that  there  is  not  a  broad  provision  which  pertains  to  the  cities 
of  to-day,  rather  than  one  which  may  benefit  our  children's  children 
if  such  there  are  to  be.  "  Every  city  shall  have  a  common  council 
which  shall  consist  of  one  or  two  bodies,  to  be  elected  with  or 
without  cumulative  voting."  Whether  the  voting  provided  for  be 
cumulative,  by  preference,  proxy  or  by  substitute.  I  agree  with 
my  eloquent  friend,  Mr.  Dean  —  the  very  Debs  of  debate  —  that 
it  is  a  fad  and  an  ism  which  should  be  excluded  forever  from  the 
consideration  of  this  Convention. 

As  to  the  second  section,  I  believe  that  its  purpose  is  good,  but 
that  its  execution  is  poor.  So  far  as  the  last  term  of  the  section  is 
concerned,  it  is  certainly  defective,  because  when  we  seek  to  make 
a  definition  in  the  Constitution,  it  should  be  so  exact  and  so  perfect 
as  to  be  beyond  the  cavil  of  even  hypercriticism.  Now,  the  article 
provides  that  the  term  "  city  officers,"  as  used  in  this  section, 
includes  "  all  officers  elected  for  a  municipal  purpose."  Does  not 
the  gentleman  know,  surely  the  committee  must  know,  that  the 
officers  of  the  department  of  police,  excise,  health,  charity,  educa- 
tion, are  not  officers  elected  for  a  municipal  purpose?  In  the  case 
of  Maximillian  against  the  Mayor,  which  leads  on  this  question, 
the  Court  of  Appeals  has  said,  speaking  of  such  officers :  "  They  are 
public  officers  though  getting  their  right  of  office  from  a  cir- 
cumscribed locality,  and  the  acts  which  they  do  are  to  be  done  in 
their  capacity  as  public  officers  in  the  discharge  of  duties  laid  upon 
them  by  law  for  the  public  benefit,  and  far  removed  from  acts  done 
by  a  city  or  town  in  its  municipal  character  in  the  management  of 
its  property  for  its  own  profit  or  advantage."  Now,  when  this 
committee  seeks  to  define  the  term  "  city  officers  "  as  those  elected 
for  a  municipal  purpose,  by  the  very  definition  they  exclude  the 
officers  of  police,  the  officers  of  excise,  the  officers  of  fire,  the 
officers  of  charity,  the  officers  of  education. 


August  9-1  CONSTITUTIONAL  CONVENTION.  229 

Section  3  classifies  the  cities  of  the  State.  Why  and  wherefore  1 
know  not,  but  the  sharp  knife  has  been  drawn  so  as  to  divide  them 
into  but  two  classes.  Surely  it  is  not  proper,  it  is  not  right  that  they 
should  be  so  divided,  that  on  one  side  we  have  cities  of  50,000 
population  or  more,  and  on  the  other  side  all  other  cities.  Then  the 
committee  goes  on  to  provide  that  "  laws  relating  to  all  cities  of 
the  same  class  are  general  city  laws,"  and  "  except  as  permitted  by 
section  4,  the  Legislature  shall  not  pass  any  law  relating  to  cities 
except  a  general  law."  I  beg  the  committee  to  bear  with  me  a 
moment  when  I  say  to  them  there  is  nothing  more  pernicious  or 
more  hazardous  than  this  attempt  to  enact  legislation  for  cities  by 
simply  providing  that  there  shall  be  general  laws,  without  any 
further  attempt  to  make  them  harmonize  with  present  special  laws 
and  existing  charters.  The  Court  of  Appeals  —  and  I  hope  you 
will  not  consider  it  "  infra  dig."  for  a  member  of  the  Committee  on 
Judiciary  to  quote  from  the  Court  of  Appeals  —  the  Court  of 
Appeals,  Judge  Finch,  writing  the  opinion,  say:  "The  cities 
acquire  their  corporate  life  by  force  of  special,  several  and  purely 
local  acts  which  create  and  frame  them  in  a  regular  exercise  of  gov- 
ernmental functions.  They  have  never  been  created  by  general  law 
and  cannot  easily  or  prudently  be  organized  by  any  other  method 
than  by  special  and  local  enactments.  "  It  may  be  possible," 
says  Judge  Finch,  "  to  frame  some  general  laws  under  which  cities 
could  be  organized,  but  difficulties  would  spring  up  in  many  direc- 
tions, and  the  probable  result  would  be  some  broad  and  general  out- 
line still  requiring  to  be  supplemented  by  more  or  less  of  special 
legislation."  Such  is  the  deliberate,  well-considered  expression  of 
the  court  in  the  139  New  York,  writing  in  the  supervisors  case. 
But  assuming  that  general  laws  can  be  framed,  I  ask  the  gentlemen 
of  the  committee  to  look  at  the  features  to  which  general  laws  are 
to  apply. 

"  Streets  and  highways.''  Is  it  possible  to  frame  general  laws  so 
as  to  dock  them  and  dovetail  them  into  the  provisions  of  the  various 
cities  of  this  state  relating  to  streets  and  highways?  The  committee 
has  been  misled  by  the  provision  of  the  present  Constitution  rela- 
tive to  opening  streets  and  highways.  I  ask  any  gentleman  who 
lives  in  a  city  to  look  at  the  condition  of  the  legislation,  whether  by 
charter  or  statute,  touching  his  streets  and  highways  and  compose 
it  if  he  can  with  general  laws  which  shall  relate  to  them. 

Next  are  enumerated  "  parks  and  public  places,  sewers  and  water- 
works." Such  public  works  are  generally  the  growth  of  peculiar 
charter  provisions,  or  of  peculiar  special  laws.  How  then  is  the 
Legislature  by  some  broad  fiat,  under  the  form  of  general  law,  to 


230  REVISED  RECORD.  [Thursday, 

make  a  provision  which  shall  be  so  elastic  as  to  be  in  articulation 
with  these  various  special  provisions?  Then  comes  "the  character 
and  structure  of  buildings."  Laws  are  now  entirely  different  in 
cities  of  this  State  of  1,000,000  or  in  cities  of  200,000  or  in  cities  of 
70,000,  as  to  buildings  within  the  fire  limits.  Next  are  classified  "  the 
city  apparatus  and  the  force  for  preventing  and  extinguishing  fires." 
I  venture  to  say  that  at  present  such  provisions  are  different  in  all 
such  cities,  and  that  no  general  law  can  be  drafted  so  as  to  com- 
plete or  be  harmonious  with  them.  Next,  we  come  to  the  matter 
of  "  salaries."  Is  it  to  be  believed  that  a  general  law  can  be  passed 
so  as  to  provide  in  all  cities  of  the  State  of  more  than  50,000  inhab- 
itants, a  uniform  rule  for  salaries  with  fairness?  Are  the  salaries  of 
Rochester,  and  there  is  no  reflection  upon  that  municipality,  to  be 
regulated  by  a  statute  which  names  the  salaries  of  the  great  city 
of  New  York?  So  far  as  the  "  matter  of  vacating,  reducing  or  post- 
poning any  tax  or  assessment,"  the  gentleman  well  knows  that  for 
many  years  the  city  of  Brooklyn  groaned  under  an  enormous 
arrearage  and  that  by  special  laws  which  were  urged  and  pressed  by 
Mr.  Low,  who  now  approves  this  article,  the  city  was  lifted  out  of 
the  very  slough  of  despond,  almost  the  chaos  of  bankruptcy.  Are 
we  now  to  have  general  laws  applicable  to  every  city  of  over  50,000 
people  relative  to  the  vacating,  reducing  or  postponing  of  taxes  and 
assessments? 

I  need  not  go  on.  I  think  that  I  have  indicated,  so  far  as  is 
necessary  at  this  stage  of  the  debate,  that  all  of  these  matters  which 
this  committee  has  treated  under  the  guidance,  perhaps,  of 
ex-Mayor  Low,  as  subject  for  general  laws  are  treated  now  by 
provisions  which  are  peculiar  to  every  city,  in  the  sense  that  they 
are  of  charters  or  of  special  statutes  for  such  matters  of  local 
government,  which  cannot  be  amended  or  continued  harmoniously 
by  general  laws. 

Now,  under  section  4  it  is  provided  that  "  laws  may  be  passed 
affecting  one  or  more  of  the  subjects  enumerated  in  the  last  pre- 
ceding section,  in  any  city,  on  the  consent  of  the  mayor,  or  the 
mayor  and  the  common  council."  I  am  opposed,  in  the  words  of 
Mr.  Dean,  to  making  the  mayor  the  mere  creature  of  the  Legisla- 
ture, "  a  bigger  man  than  old  Grant,"  a  greater  man  than  the 
Governor  of  the  State.  Shall  it  be  that  this  mere  municipal  officer 
is  to  sit  with  full  panoplies  of  power,  and  the  absolute  right  of  veto 
in  the  local  executive  chamber,  and  by  his  fiat  set  at  naught  the  will 
of  the  people  of  this  State?  The  principle  is  right,  but  the  practice 
is  wrong.  Suppose  that  party  politics  came  into  question?  May 
we  not  have  the  Legislature  chucking  at  the  mayors  of  cities  local 


August  9.]  CONSTITUTIONAL   CONVENTION.  231 

legislative  matters  to  make  political  issues.  The  mayor  will  veto,  or 
not,  as  he  pleases,  and  thus  a  game  of  shuttle-cock  and  battledore 
between  the  mayor  of  the  city  and  the  Legislature  of  the  State  will 
be  played.  Or  if  the  mayor  of  the  city  shall  not  approve  of  legisla- 
tion, and  it  must  come  to  the  people's  vote,  I  ask  the  gentleman  what 
measure  of  intelligent  reform  could  ensue  from  putting  before  the 
people  of  the  city  ten  or  fifteen  or  fifty  different  statutes  in  a  sort  of 
wholesale  referendum?  No  special  legislation  shall  be  initiated  or 
inaugurated  in  the  Legislature  touching  the  local  affairs  of  a  city 
without  the  previous  preliminary  assent  of  the  mayor  and  of  the  local 
authorities.  That  is  the  way  the  measure  should  be  amended  and 
that  is  the  way  the  proposition  should  be  changed. 

Now,  there  comes  the  provision  as  to  the  power  of  the  Governor 
to  remove  the  head  of  the  police  force.  I  fully  approve  of  this. 
For,  aside  from  any  questions  of  party,  which,  thank  God,  have  not 
yet  arisen  in  this  debate,  I  believe  that  it  is  a  wise,  salutary  and 
beneficient  principle;  and  I  am  glad  that  the  committee  have  incor- 
porated it.  I  believe  that  the  police  power  of  the  State,  using  the 
term,  not  as  a  lawyer,  but  as  a  layman,  is  a  matter  of  State  govern- 
ment, and  that,  therefore,  it  is  proper  that  you  should  commit  to 
the  Governor  the  power  to  take  by  the  throat  and  cast  out  any  man 
who  shall  not  fairly  administer  the  police  affairs  of  any  municipality. 
But  I  believe  that  the  principle  of  home  rule  is  violated  in  per- 
mitting the  Governor  of  the  State  to  make  an  appointment  of  a  local 
police  official.  I  believe  that  if  the  power  of  appointment  be  vested 
in  the  mayor  or  in  the  mayor  and  the  common  council  you  should 
not  say  that  if  the  officer  so  chosen  should  fail  in  his  duty,  that, 
therefore,  the  local  appointive  power  shall  name  another  man  to 
administer  the  police  affairs  of  the  city.  Let  your  Governor  punish, 
not  appoint;  destroy,  not  create.  Now,  I  come  to  the  provision  as 
to  the  election  of  officers,  which  is  gross  centralization.  I  see  no 
reason  why  the  Legislature  of  the  State  should  enter  into  the  affairs 
of  the  cities  so  as  to  appoint  a  board  of  election  commissioners.  I 
believe  in  equal  minority  and  majority  representations  upon  election 
boards  of  cities;  but  if  the  power  be  vested  in  the  mayor,  or  in  him 
and  the  common  council,  if  you  please,  to  appoint  the  heads  of  other 
departments,  I  see  no  reason  why,  under  wise  and  well-framed 
general  laws,  the  power  should  not  also  be  given  to  local  authority 
to  appoint  its  own  election  officers.  This  solves  the  problem,  yet 
violates  no  principle. 

Then  comes  the  marvelous  provision  of  section  7,  "  nothing  in  this 
article  contained  shall  affect  the  power  of  the  Legislature  to  consoli- 
date contiguous  cities,  or  annex  contiguous  territory  to  any  city,  or 


232  REVISED  RECORD.  [Thursday, 

to  make  or  provide  for  making  a  charter  for  any  city  created  by 
such  consolidation."  Look  you!  Here  is  a  provision  that  the 
Legislature  may  absolutely  wipe  put,  and  annex  the  city  of  Brook- 
lyn to  the  city  of  New  York.  A  true  principle  of  home  rule  is  that 
no  municipality  should  be  annexed  to  another,  unless  the  people  of 
the  first  city,  at  the  polls,  express  their  wish  for  annexation.  What 
is  the  value  of  this  whole  article  if  the  Legislature  can  wipe  out 
Brooklyn  and  consolidate  it  with  the  city  of  New  York,  and  then 
make  a  charter  not  subject  to  a  single  restriction  of  this  provision 
for  general  home  rule?  Here  are  the  proposed  provisions  that 
are  to  govern  municipalities.  The  great  municipality  of  the  future, 
we  are  told,  is  to  be  united  New  York  and  Brooklyn,  and  yet  this 
very  article  which  should  pertain  to  this  great  city  above  all,  and 
which  is  to  provide  the  panacea  for  all  evils,  frees  the  Legislature 
to  make  any  charter  it  pleases  for  the  Greater  New  York. 

And,  then,  finally,  the  article  provides,  "  except  as  expressly 
limited,  the  power  of  the  Legislature  as  to  cities,  their  officers  and 
government "  is  continued.  As  to  that  I  shall  perhaps  have  some- 
thing to  say,  but  not  at  this  moment. 

Now,  gentlemen,  I  want  to  say  of  this  article:  It  seeks  to  give 
life,  but  it  kills.  The  committee  has  avoided  the  cardinal  principle 
of  home  rule,  because  the  committee  is  afraid  of  permitting  the  prac- 
tical execution  of  it.  It  is  cowardice,  not  alone  in  the  committee, 
but  cowardice  of  every  member,  perhaps,  of  this  Convention, 
cowardice  that  may  rest  in  me,  not  to  face  this  question  of  home  rule 
fairly  and  squarely.  Let  us  say,  sir,  once  for  all,  either  that  the  cities 
cannot  govern  themselves,  either  that  the  municipal  corporations  of 
this  State  should  go  into  the  hands  of  a  receiver,  or  that  home  rule 
should  be  applied  in  all  its  breadth  and  all  its  strength.  Home  rule 
is  American,  so  we  have  been  told.  Nay,  the  whole  history  of  the 
civilization  of  this  world  is  the  history  of  great  cities,  whether  it  is 
of  cities  that  sprang  up  through  the  barter  of  a  king  who  wanted 
money,  or  were  chartered  to  offset  the  insolvent  power  of  the 
nobility,  or  were  founded  to  repel  invaders  like  the  great  cities  of 
the  middle  ages  in  Spain.  The  whole  progress  of  liberty,  whether 
I  quote  Guizot,  Toqueville  or  Robertson,  it  matters  little,  has  been 
due  to  the  calm,  brave,  self-sustained,  free  exercise  of  local  self- 
government  by  the  people  within  the  bounds  of  cities.  Toqueville 
says :  "  The  local  assemblies  of  cities  constitute  the  strength  of  free- 
men. Municipal  institutions  are  to  liberty  what  primary  schools 
are  to  science.  They  bring  it  within  the  people's  reach  —  they  teach 
men  how  to  use  and  how  to  enjoy  it.  A  nation  may  establish  a 
system  of  fre.e  government,  but  without  the  spirit  of  municipal 


August  9.]  CONSTITUTIONAL   CONVENTION.  233 

institutions  it  cannot  have  the  spirit  of  liberty."  Writers  say  the 
rule  of  cities  is  the  question  of  the  Sphinx.  Men  have  always  been 
frightened  by  the  problem  of  city  government.  Not  alone  the  dille- 
tante  who  sings  with  Byron  that  "  the  hum  of  cities  is  horrible,"  but 
such  as  the  philosopher  who  said  the  great  peril  to  American 
institutions  is  the  rule  of  cities.  Back  in  the  time  of  Elizabeth,  you 
remember  that  her  city  of  London,  which  had  not  then  even 
500,000  inhabitants,  was  subject  to  three  proclamations  which  pro- 
hibited the  building  within  three  miles  of  its  borders  of  a  single 
house  or  dwelling.  The  fear  was  then  that  the  people  of  the  cities, 
knowing  their  strength,  and  united,  would  carry  on  the  fight  for 
liberty  and  freedom  not  alone  against  the  feudal  power,  against  the 
nobles,  but  even  against  the  sovereign  will.  The  difficulties  in  the 
government  of  cities  are  not  far  to  seek.  I  tell  nothing  new.  I  may 
be  unconsciously  plagiarizing.  They  are  these:  First.  There 
are  so  few  direct  taxpayers.  You  may  take  almost  any- 
thing from  a  man  indirectly,  little  from  a  man  directly. 
The  man  who  pays  the  rents  does  not  understand  that 
the  tax  levy  bears  upon  him.  The  man  who  pays  the  direct  tax  into 
the  receiving  office  is  he  who  protests.  The  other  is  indifferent;  he 
is  the  workingman,  the  rent  payer,  who  sees  no  tax  bill  and  forgets 
that  any  burden  is  upon  him.  It  is  chiefly  on  account  of  the  fewness 
of  the  direct  taxpayers  that  the  difficulties  in  the  government  of 
cities  exist. 

Another  difficulty  is  that  the  affairs  of  the  city  are  not  understood 
by  the  intelligent  citizens  who  live  in  them.  We  have  a  complex 
system  of  city  government;  we  have  boards  and  bureaus;  we  have 
commissions  and  routine  of  delicate  charter  provisions  and  manipu- 
lations. No  man,  unless  he  becomes  a  student  of  his  own  muni- 
cipality, burning  the  midnight  oif,  can  understand  the  system  and 
program  of  government.  Take  these  two  things,  then,  the  intri- 
cate method  of  administering  government  in  cities,  the  fewness  of 
the  people  compared  with  the  population  who  pay  direct  taxes,  and 
you  have  the  chief  bars  to  good  clean  government. 

A  man  goes  about  his  business  in  despair,  and  says :  "  Those 
fellows  in  the  city  hall  or  common  council  can  manage  it.  I  pay 
my  .taxes.  They  are  unjust,  but  I  do  not  know  the  remedy,  nor 
where  lies  the  fault.  TJie  system  is  wrong,  but  who  is  the  man?  " 
How  many  men  know  the  manner  in  which  their  own  city  is  gov- 
erned? They  may  hear  of  the  board  of  works,  or  of  the  common 
council,  but  who  can  put  his  finger  on  any  provision  of  the  city 
government  and  say  this  or  that  is  the  provision  that  should  be 
changed,  or  this  or  that  is  the  provision  which  should  be  remedied 


234  REVISED  RECORD.  [Thursday, 

or  amended,  or  here  is  he  who  must  account?  Now,  if  we  cannot 
have  the  town  meeting  or  the  folk  mote,  we  need  so  far  as  is  pos- 
sible, true  representative  government;  we  need  a  system  so  simple 
that  the  man  when  he  comes  to  the  voting  booth  can  know  exactly 
what  he  is  doing  and  his  full  measure  of  responsibility.  We  want 
to  have  simplicity  and  responsibility  coupled  with  unity  in  the 
administration  of  the  affairs  of  city;  and  then  it  seems  to  me  we 
have  in  our  imperfect  way,  at  least,  partial  solving  of  the  problem. 
Lord  Coke  quoted  the  judge  who  said,  "  Blessed  be  not  the  com- 
plaining tongue,  but  blessed  be  the  amending  hand,"  therefore,  if 
the  committee  will  bear  with  me,  I  will,  purely  in  a  tentative  way, 
suggest  to  the  chairman  of  the  committee  what  provisions  might  be 
incorporated  in  the  article,  in  order  that  when  the  ruddy,  virile  son 
of  Jesse  cometh  forth,  he  may  be  adopted  by  our  unanimous  vote. 
(Applause.)  I  believe  in  the  divisions  of  cities  into  classes,  but  the 
classes  should  be  more  than  two.  They  certainly  should  be  three, 
and  I  suggest  for  the  careful  consideration  of  the  Committee  on 
Cities,  if  this  matter  be  sent  back  to  them,  that  the  cities  of  the  State 
might  be  divided  into  three  classes,  the  first  of  250,000  and  over,  the 
second  of  less  than  250,000  and  more  than  50,000,  and  the  third  of 
all  other  cities. 

Then,  gentlemen,  I  let  the  common  council  consist  of,  say  120 
men,  in  cities  of  the  first  class,  and  in  cities  of  the  second  class  of 
seventy-five,  and  in  cities  of  the  third,  final  class,  of  thirty.  It  may 
be  wise,  it  may  be  well,  that  in  the  great  city  of  Xew  York  there 
should  be  a  system  of  dual  chambers.  It  may  be  wise,  it  may  be 
well  that  there  should  be  a  smaller,  Senate-like  body,  if  you  please, 
elected  by  the  citizens  at  large,  but  the  gentleman's  experience  and 
mind  go  hand  in  hand  when  we  say  that  one  general  ticket,  elected 
by  the  whole  city,  does  not  show  such  improvement,  in  either  ability 
or  honesty  or  in  statesmanship,  as  to  commend  itself  either  to  him 
or  to  me. 

The  chief  election  officers  of  the  city  should  be  required  to  divide 
the  various  cities  into  districts  of  compact  territory  and  of  relative 
equality  of  population,  as  near  as  may  be,  and  from  each  district 
there  should  be  elected  for  a  term  equal  to  that  of  the  mayor  a 
representative  to  the  common  council.  I  believe  there  should  be 
the  divorce  of  municipal  elections  from  State  and  national  elections. 
I  believe,  sir,  that  full  power  should  be  intrusted  to  this  common 
council  by  general  laws,  not  even  such  emasculated  powers  as  are 
given  in  this  proposed  article,  but  it  should  be  intrusted  with  every 
power  of  local  government  and  with  every  governmental  power 
committed  to  the  city  by  the  State.  That  is,  I  believe  it  should 


August  9.]  CONSTITUTIONAL  CONVENTION.  235 

have  the  power  of  fixing  the  appropriations;  I  believe  it  should  have 
the'  power  of  determining  the  tax  levy;  I  believe  it  should  have 
every  power  that  may  be  vested  in  a  local  legislature.  This,  of 
course,  is  subject  to  this  criticism;  it  may  be  said  that  the  experi- 
ence of  the  past  has  shown  to  us  that  the  common  council  of 
cities  should  rather  be  shorn  of  their  powers.  But  is  not  this  the 
crucial  test  of  the  ability  of  the  people  of  a  city  to  govern  them- 
selves. If,  with  a  large  body  elected  from  separate  districts, 
intrusted  with  the  full  power  of  local  government,  the  cities  of  the 
State  cannot  or  do  not  elect  men  who  are  competent  to  administer 
their  affairs,  then,  I  say,  let  them  be  blotted  out  forever  and  be 
administered  by  commissions  appointed  by  the  Governor  or  Legis- 
lature. The  only  way  to  do  is  thus  to  educate  the  people.  It  was 
Disraeli  who  said  that  true  progress  was  to  educate  his  party. 
But  the  way  to  do  this  is  to  educate  the  people,  so  that  a  man  will 
understand  when  he  goes  to  his  polls  at  the  spring  elections  that 
he  has  two  men  to  vote  for  —  the  mayor,  the  chief  executive  of  the 
city,  and  the  member  of  his  local  legislature.  He  knows,  when  he 
votes  for  his  member,  that  he  will  have  the  power  of  appropriation, 
the  power  of  taxation,  the  power  of  legislating  upon  all  city  affairs, 
to  say  what  bonds  of  the  city  shall  be  issued,  what  obligations  of 
the  city  shall  be  issued,  what  expenditures  and  what  contracts  shall 
be  made.  Then  if  there  be  not  public  spirit,  and  if  there  be  not 
enthusiasm  and  patriotism  enough  in  the  inhabitants  of  the  city 
when  the  issue  is  put  fairly  and  squarely  before  them  to  elect  such 
men  as  will  represent  them  fairly,  then  let  chaos  come  again,  and 
they  deserve  it. 

I  believe  that  the  heads  of  departments  should  be  entitled  to 
seats  on  the  floor  of  the  common  council,  but  without  the  power  to 
vote.  I  believe  that  the  heads  of  the  departments  should  not  com- 
municate with  the  local  legislature  by  means  of  long  letters,  which 
are  pigeon-holed,  lost  sight  of  and  never  read.  I  believe  the  head 
of  a  department,  if  he  have  power  to  express  himself,  and  anybody 
who  knows  his  business  can  express  himself,  should  be  subject  to 
question,  interrogation,  explanation  and  to  the  hectic  of  debate 
upon  the  very  floor  of  the  common  council.  Public  opinion  rules 
to-day.  Newspapers  are  our  mayors,  our  common  councils.  Give 
us  in  addition  not  simply  the  agitation  of  some  local  Demosthenes 
during  the  week  or  two  of  political  campaign,  but  through  the  year 
let  us  have  a  common  council  selected  from  the  full  body  of  the 
citizens,  large  enough  to  represent  all  the  different  elements  of  the 
city,  where  the  heads  of  the  departments  must  come  to  explain  why 
and  wherefore  they  want  this  appropriation  or  why  and  wherefore 


236  REVISED  RECORD.  [Thursday, 

they  have  neglected  this  sewer,  or  why  and  wherefore  they  have 
not  done  this  or  that  matter  of  municipal  business,  and,  if  they  do  not 
or  cannot,  then  soon  will  the  people  gibbet  them  at  the  very  cross- 
roads of  public  opinion.  I  believe  there  should  be  general  State 
laws  applying  to  all  cites  of  a  class,  but  I  believe  that  provision 
should  be  made  that  no  amendment  can  be  passed  to  such  laws  so 
as  to  eliminate  a  city  from  a  class  and  yet  such  special  amendment 
be  held  general  because  it  amends  a  general  law.  I  believe  that  the 
provisions  as  to  general  laws  should  be  so  carefully  guarded  that  the 
Legislature  will  be  absolutely  prohibited  from  passing  any  special 
law  amendatory  of  the  general  act  so  as  to  exclude  any  city.  Then 
I  think,  as  I  have  already  indicated,  that  the  mayor  and  the  common 
council,  not  mayors  in  cities  of  over  50,000  inhabitants,  and  mayors 
and  common  councils  in  other  cities,  as  proposed,  should  have  the 
right  to  say  whether  any  special  law  affecting  the  finances  or  indeed 
any  law  affecting  any  matter  of  municipal  concern,  should  be  intro- 
duced in  the  Legislature  of  the  State.  Do  not  have  the  Legislature 
chuck  to  the  mayor  of  the  city  this  or  that  piece  of  legislation.  Do 
not  have  the  Legislature  throwing  down  to  the  people  this  or  that 
proposed  statute  to  make  an  issue  in  a  political  campaign  or  at  the 
polls. 

I  suggest  a  provision  that  cities,  heretofore  incorporated,  might 
become  incorporated  under  general  laws,  and  that  it  may  be  wise  to 
also  provide  that  the  cities  of  the  State  should  have  the  power  to 
make  their  own  charters,  when  such  wish  is  expressed  by  a  vote  of 
the  people  at  the  polls.  This  is  afforded  in  some  Constitutions  of 
the  new  western  States.  It  is  the  true  principle  of  home  rule,  entire 
and  complete,  and  fundamental.  Let  the  people  of  a  city  make  their 
own  charter,  and  then,  if  they  cannot  execute  it,  theirs  are 
the  blame  and  shame.  Because  common  councils  in  the 
past  have  not  come  up  to  the  full  measure  of  the  responsi- 
bility, that  is  the  slight  responsibility,  that  has  been  put  upon 
them,  it  is  believed  that  there  can  be  no  scheme  for  a  local  legisla- 
ture free  to  deal  with  city  affairs  and  city  concerns.  I  insist  that  if 
you  once  put  into  the  hands  of  a  municipal  body,  large  enough  to 
represent  all  shades  of  views,  the  full  responsibility,  then  the  matter 
rests  with  the  people  of  the  city,  and  the  people  will  sooner  or  later 
see  to  it  that  there  is  good  government,  for  it  is  their  government; 
that  the  lesson  must  be  learned  by  experience. 

The  gentleman  has  said  that  this  proposed  article  is  like  the  slow 
growth  of  a  tree;  that  is,  that  we  should  have  first  the  plant,  and 
then  the  sapling,  and  then  the  oak.  I  accept  his  figure.  But  I 
believe  we  should  now  have  the  full  sturdy  oak,  for  though  an  oak 


August  9.]  CONSTITUTIONAL   CONVENTION.  237 

concealed  the  second  Charles,  "  While  underneath  the  Roundhead 
rode  and  hummed  his  surly  hymn,"  it  was  also  an  oak  which  covered 
the  charter  of  Connecticut  when  the  second  Charles  sought  to  seize 
it.  I  believe  that  we  want  the  oak  in  its  full  growth,  powerful, 
strong,  vigorous,  ready  to  stand  the  tempest  and  the  storm.  Fisher 
Ames  said  that  other  States  were  like  proud  merchant  ships  under 
full  set  sail,  which  in  a  moment  might  strike  a  rock  and  sink  for- 
ever; but  this  republic  he  compared  to  some  great  raft.  You 
remember  the  figure.  We  sail  on  it  and  sometimes  our  feet  are  wet, 
sometimes  the  seas  dash  over  us,  but  it  never  sinks.  We  have  had 
tribulations,  we  have  had  sorrows,  we  have  had  troubles,  we  have 
had  scandals,  we  have  had  disgraces,  but  I  believe  that  the  strong, 
sturdy  arms  of  the  common  people,  when  full  responsibility  is  cast 
upon  them,  will  send  their  raft  through  wintry  waters  to  the  surface 
of  the  summer  seas.  I  regard  the  discussion  of  this  measure  not  as 
any  party  question.  I  have  tried  to  keep  away  from  partisanship.  I 
have  studied  not  to  deal  in  mere  criticism,  crimination.  If  we  can- 
not discuss  this  free  entirely  from  party,  so  much  the  worse  for  us. 
I  want  to  treat  the  matter  as  a  member  of  this  Constitutional  Con- 
vention seeking  to  solve  the  most  important  problem  before  us. 
And,  sir,  I  hope,  for  I  am  still  young  enough  to  indulge  in  these 
day  dreams,  I  hope  the  day  may  come  when  in  the  words  of  the 
man  who  feared  for  American  institutions  because  of  our  cities  it 
may  be  said  of  their  citizens : 

"  Then  none  was  for  a  party, 

And  all  were  for  the  State, 
And  the  great  man  helped  the  poor 

And  the  poor  man  loved  the  great ; 
Then  goods  were  fairly  portioned, 

Then  spoils  were  fairly  sold, 
For  the  Romans  were  like  brothers 

In  the  brave  days  of  old." 
(Applause.) 

Mr.  J.  Johnson  —  Mr.  Chairman,  I  desire  to  ask  the  gentleman  a 
question,  not  as  argumentative,  but  as  explanatory.  I  would  like 
to  ask  two  questions. 

Mr.  Jenks  —  With  pleasure. 

Mr.  J.  Johnson  —  First,  assuming  that  his  proposition  is  correct, 
that  the  true  theory  of  government  is  a  common  council,  a  large 
council  that  should  represent  all  parties,  all  sections,  all  classes  of 
the  electors  —  I  think  I  am  fairly  right  in  my  statement  of  his  posi- 
tion —  can  that  be  accomplished  in  cities  without  cumulative  voting, 


238  REVISED  RECORD.  [Thursday, 

or  some  method  of  minority  representation  being  permitted? 
Secondly,  he  says  that  if  this  system  which  he  proposes  does  not 
succeed,  suggesting  that  it  is  possible  that  it  might  not,  he  would 
then  remand  the  cities  to  commission  government.  Would  not 
putting  what  he  suggests  into  the  Constitution  make  it  impossible 
to  remand  the  cities  to  commission  government,  and  necessarily 
leave  them  with  the  system  that  he  suggests  might  fail? 

Mr.  Jenks  —  My  first  answer  is  this.  I  do  not  say  that  cumula- 
tive voting  is  necessary,  because  if  the  legislative  body  be  great  it 
will  represent  many  small  districts.  I  believe  that  so  far  as  is 
necessary  then  that  all  shades  of  opinion  will  be  represented.  I  do 
not  believe  the  day  has  come  yet  for  minority  representation.  I 
believe  that  this  is  a  government  by  majorities.  I  would 
say  to  the  gentleman  that  the  London  county  council, 
which  consists  of  138  members,  is  not  elected  by  a  cumulative 
minority  or  any  kind  of  reference  voting.  As  to  the  second 
measure;  I  do  not  believe  that  the  day  will  ever  come  when  the 
citizens  of  the  city  of  Brooklyn  or  any  other  city  will  be  so  lost  as 
to  require  government  by  commissions.  But  if  it  were  necessary  it 
is  always  possible  to  amend  the  Constitution  by  the  act  of  the  Legis- 
lature and  by  the  vote  of  the  people. 

Mr.  Root  —  Mr.  Chairman,  I  do  not  wish,  sir,  to  enter  into  any 
extended  discussion  of  this  matter  at  this  time,  but  I  do  desire  to 
interpose  an  observation  which  seems  to  me  apposite  to  the 
remarks  made  by  the  gentleman  from  Kings  (Mr.  Jenks).  I 
entered  the  chamber  while  that  gentleman  was  referring  to  the 
free  cities  of  the  middle  ages,  and  I  listened  with  great  interest  and 
satisfaction  to  the  remarks  which  he  made  upon  that  subject  and 
those  which  followed.  It  gave  me  great  pleasure  to  see  that  this 
important  question,  which  has  been  considered  with  great  pains 
and  ability  by  a  committee  composed  of  gentlemen  who  certainly 
are  the  peers  of  every  member  of  this  Convention,  is  receiving,  at 
last,  that  dignified,  courteous  and  deliberate  consideration  to  which 
it  is  entitled.  The  observations  of  the  gentleman  from  Kings  (Mr. 
Jenks)  rise  fully  to  the  dignity  of  the  subject  and  fitly  represent  the 
great  municipality  which  has  sent  him  to  this  Convention.  I,  for 
one,  thank  him  for  the  attention  which  he  has  given  to  this  subject 
and  the  ability  which  he  has  displayed.  But,  sir,  let  me  ask  the 
gentleman  if,  filled  with  natural  and  proper  pride  in  the  great  city 
which  he  represents,  he  has  not  taken  a  somewhat  one-sided  view  of 
the  relations  of  municipalities  of  the  State  to  the  State?  The  free 
cities  of  the  middle  ages  stood  by  themselves,  governed  by  them- 
selves, but  they  undertook  to  exercise  no  power  of  governmental 


August  9.]  CONSTITUTIONAL   CONVENTION.  239 

rights  over  others,  and  acknowledged  no  duties  to  others.  The 
great  cities  of  the  State  of  New  York  can  build  no  walls  around 
their  borders.  They  seclude  themselves  in  the  midst  of  no  barriers 
between  themselves  and  their  fellow-citizens  of  the  State.  They 
undertake  to  furnish  to  us  and  acknowledge  their  obligations  under 
the  law  to  all  of  us  from  Montauk  to  the  State  line  in  Lake  Erie, 
the  great  market,  the  great  centre  of  education,  of  recreation,  of 
business,  the  centre  commercially,  financially,  politically,  around 
which  revolve,  and  from  which  throb  and  pulse,  the  life  current  of  a 
State  which  is  a  political,  social,  commercial  and  financial  unit. 
Now,  sir,  the  city  which  the  gentleman  represents  undertakes  to  cast 
votes  which  will  determine  who  shall  be  the  presidential  electors 
of  the  State  of  New  York,  to  cast  votes  which  shall  determine  who 
shall  be  the  Governor  of  the  State  of  New  York,  to  send  representa- 
tives to  the  Senate  and  Assembly,  whose  votes  will  outweigh  those 
of  any  less  number  from  any  other  part  of  the  State  of  New  York, 
in  determining  the  policy  and  the  law  for  the  whole  State.  That 
city  cannot  cut  herself  oft"  from  the  rest  of  the  State.  That  city  can- 
not put  herself  in  the  position  of  a  free  city  of  the  middle  ages  with 
a  wall  around  her,  governing  herself  exclusively;  or  if  she  does,  she 
secedes  from  the  State  and  becomes  a  city  by  herself.  And  against 
that  or  any  amendment  or  law  which  provides  for  that,  I  rise  now 
to  protest.  No,  sir.  The  cities  of  the  State,  while  properly  claiming 
that  they  should  be  exempted  from  undue  interference  with  their 
private  affairs,  nevertheless  must  admit  the  right  of  the  people  of  a 
State  to  which  they  belong  and  to  which  they  owe  alle- 
giance, equally  with  the  smallest  hamlet,  to  see  that  the 
great  bureau  of  police  in  which  every  citizen  is  interested, 
that  the  exercise  of  the  elective  franchise  in  which  every  citizen  is 
interested,  remain  under  the  domination  of  the  law  of  the  State. 
One  is  correlative  to  the  other.  The  two  must  go  hand  in  hand,  and 
I  understand,  sir,  that  the  attempt  of  this  committee  has  been  to 
put  into  the  measure  which  they  have  reported,  on  the  one  hand,  a 
just  exemption  from  undue  interference  in  purely  private  and  local 
matters  in  the  city,  and  on  the  other  hand,  the  assertion  and  the  pro- 
tection of  the  higher  right  of  the  people  of  the  great  State  of  New 
York  to  preserve  her  autonomy,  her  political  independence,  her 
political  unity  and  the  rights  of  all  her  people  by  control  over  those 
governmental  functions  in  the  city,  which  are  the  proper  province 
of  the  general  government. 

Now,  sir,  it  may  be  that  this  committee  has  not  drawn  the  line 
rightly.  It  may  be  that  there  should  be  tearing  down  here  and 
building  up  there,  but  they  have  pursued  the  right  method  I  assert, 


240  REVISED  RECORD.  [Thursday, 

and  that  instead  of  deriding  their  efforts,  it  is  our  duty  seriously  to 
proceed  upon  the  general  lines  which  they  have  laid  down;  and  in 
that  I  hope  this  Convention  will  heartily  agree.  (Applause.) 

Mr.  Schumaker  —  Mr.  Chairman,  I  am  certainly  very  much  sur- 
prised at  the  remarks  of  the  gentleman  from  New  York  (Mr.  Root). 
I  have  heard  of  no  attempt  by  my  colleague,  Mr.  Jenks,  or  any  of 
my  colleagues  to  build  up  on  Long  Island  a  city  of  the  middle  ages. 
He  must  have  come  in  very  late.  He  must  have  under- 
stood very  queerly  the  remarks  of  my  friend  and  col- 
league, for  he  never  lisped  one  word  in  relation  to  making 
Brooklyn  a  city  of  the  middle  ages,  not  dependent  upon  State  gov- 
ernment, that  it  should  be  there  alone  with  a  wall  around  is  as  old 
Nuremberg  used  to  be  and  all  those  cities  along  the  Danube.  We 
never  had  any  trouble  about  the  cities  in  our  own  part  of  the  State, 
and  I  mean  the  cities  of  New  York  and  Brooklyn,  until  there  was  an 
attempt  made  to  govern  those  cities  outside  of  those  cities  by  a 
Legislature  of  the  State  of  New  York.  And  then  the  people  rose 
up  against  it;  from  the  1,500  majority  in  the  city  of  Brooklyn 
against  the  dominant  party,  we  rolled  up  for  Tilden  and  reform 
21,000  instead  of  1,500.  And  what  was  the  reason?  The  commis- 
sions. We  hardly  knew  where  we  were.  One  Legislature  would 
give  us  a  commission  for  the  police,  another  Legislature  would 
give  us  a  commission  for  something  else,  till  the  people  of  New 
York  and  Brooklyn  stood  bound  hand  and  foot  to  commissions 
made  in  the  city  of  Albany  by  a  political  party;  and  I  am  astonished 
that  the  gentleman  is  ignorant  of  those  facts.  Talk  about  the  cities 
of  the  olden  ages!  Why,  a  man  in  New  York  or  Brooklyn  hardly 
was  able  to  breathe  without  some  satrap  down  there  from  Albany 
was  on  his  track.  I  believe,  Mr.  Chairman,  in  a  simple  government 
of  cities.  I  believe  that  it  should  be  as  simple  as  the  government  of 
a  town  or  village.  I  believe  that  the  simpler  your  government  is 
the  better  for  the  people.  I  remember  one  good  old  man  who  in 
those  days  had  moved  down  to  our  city  from  a  country  town. 
"  Why,"  he  says,  "  I  did  not  know  that  we  had  a  government  except 
when  the  taxgatherer  came  around  until  those  infernal  commissions 
were  made  at  Albany  to  take  what  little  liberty  we  had  from  us  here 
in  the  cities  of  New  York  and  Brooklyn." 

And  he  was  right.  I  was  brought  up  in  the  country  and  never 
knew  that  there  was  such  a  government  to  interfere  with  anything 
at  all  except  when  the  taxgatherer  came  around  and  my  father  used 
to  complain  of  the  extent  of  the  taxes.  Now,  it  all  rests  with  having 
good  officers,  with  good  men.  The  great  philosopher,  William 
Penn,  said  that  a  bad  government,  a  bad  set  of  laws  administered  by 


August  9.]  CONSTITUTIONAL  CONVENTION.  241 

good  men,  was  a  better  government  than  good  laws  administered  by 
bad  men.  That  is  the  true  secret  of  all  good  governments.  Make 
the  laws  of  a  city  plain.  The  laws  of  the  city  of  Brooklyn  used  to  be 
very  plain.  The  laws  of  the  city  of  New  York  used  to  be  very  plain. 
Good  old  Mayor  Powell  when  he  was  met  on  the  street  and  was 
asked  about  a  bond  could  take  his  hat  oft"  and  tell  the  man  who 
asked  about  the  bond  the  date  of  it,  and  when  it  was  issued  and  for 
what  purpose.  We  want  a  good  mayor,  we  want  a  good  common 
council;  it  does  not  make  any  difference  whether  fifteen,  fifty  or 
one  hundred  and  fifty.  We  want  good  men  there  and  if  we  have 
good  men  there  we  have  a  good  government.  You  can  make 
all  the  provisions  in  the  Constitution,  you  can  pass  all  the  laws  in 
the  Legislature  you  wish,  then  it  you  do  not  have  the  proper  agents 
to  carry  out  those  laws,  you  will  have  a  bad  government.  That 
there  is  no  question  about,  from  my  experience.  I  have  lived  in  the 
city  of  Brooklyn  for  over  fifty  years.  I  remember  most  all  the 
mayors.  I  remember  on  one  occasion  I  went  to  our  old  mayor,  and 
a  good  man  he  was,  Josie  Mosier,  and  showed  him  an  opinion  of 
the  Court  of  Appeals.  He  looked  at  it  and  said,  "  That  is  the 
opinion  of  men,  isn't  it?"  I  said,  "Yes.  We  must  follow  it." 
''  Well,"  he  says,  "  I  won't."  And  in  four  years  afterwards  the 
Court  of  Appeals  reversed  their  decision  in  favor  of  good  old- 
fashioned  Josie  Mosier. 

Now,  you  can  put  all  the  complicated  articles  you  please  in  the 
Constitution  for  the  government  of  cities,  but  if  you  elect  bad  men 
you  have  just  as  bad  a  government  as  you  had  before.  My  col- 
league and  I  disagree  about  the  removal  of  officers.  The  people  of 
the  city  or  the  people  of  the  town  can  remove  an  officer  who  is 
false  to  his  duty,  like  a  flash  of  lightning,  if  it  is  necessary.  They 
can  ignore  him  entirely.  I  do  not  think  there  should  be  any  inter- 
ference on  the  part  of  the  State  in  the  removing  of  any  municipal 
officer  in  a  city.  It  may  be  done.  The  people  will  do  it,  and  when 
they  do  they  do  it  effectively.  But  if  they  will  not  take  any  interest 
in  politics,  if  to  save  twenty  shillings  over  in  New  York  or  from 
New  York  over  in  Brooklyn,  a  man  will  not  go  to  the  poll,  he  is  the 
sufferer.  If  we  cannot  arouse  political  interest  in  the  cities  of  our 
State  sufficiently  for  proper  government,  and  the  people  will  not  go 
and  vote  the  proper  ticket  or  elect  the  best  men,  they  are  the 
sufferers.  And  let  them  suffer;  they  will  soon  find  out  that  it  is  a 
great  deal  better  to  exert  themselves  and  get  proper  officers  an'd 
then  afterwards  they  will  not  suffer  so  much.  I  was  very  much 
surprised,  indeed,  to  hear  my  friend  from  New  York  (Mr.  Root) 

16 


242  REVISED  RECORD.  [Thursday, 

make  the  suggestion  that  he  did,  or  I  should  not  have  said  anything. 
But  upon  the  whole,  I  am  not  sorry  that  I  said  something. 
(Applause.) 

Mr.  Dean  —  Mr.  Chairman,  1  simply  desire  to  congratulate  this 
Convention  upon  the  fact  that  it  has  a  gentleman  of  sufficient 
gravity  to  discuss  this  absurd  proposition,  sufficiently  dignified 
to  please  the  gentleman  from  New  York  (Mr.  Root). 

Mr.  E.  R.  Brown  —  Mr.  President,  in  the  Committee  of  the 
Whole  it  would  be  well,  if  we  desire  to  make  any  progress  upon 
this  subject,  to  confine  ourselves  very  closely  to  the  principles  which 
are  to  be  considered  by  the  Convention,  and  possibly  enacted  into 
an  amendment. 

The  doctrine  of  home  rule  with  reference  to  cities  is  in  many 
respects  a  misnomer.  The  reason  that  no  cry  has  come  up  from  the 
State  against  special  legislation  in  relation  to  towns,  is  that  no 
special  legislation  is  demanded;  substantially  none.  In  relation  to 
cities  an  entirely  different  state  of  things  exists,  and  it  has  become 
necessary  that  there  should  be  a  much  larger  body  of  legislation. 
Out  of  this  legislation  has  grown  a  great  diversity.  The  citizens 
of  one  city,  thinking  that  a  particular  evil  could  be  reached  in  a 
particular  way,  have  proposed  a  remedy;  the  people  of  another  city, 
thinking  that  a  particular  evil  could  be  reached  in  a  particular  way, 
have  proposed  another  remedy,  and  there  has  been  no  constitutional 
or  other  provision  of  law  in  this  State  which  has  tended  to  create 
uniformity  in  the  legislation  for  cities;  and  this  great  diversity  of 
law  has  given  an  opportunity  to  those  who  desired  to  put  through 
measures  which  are  not  really  in  the  interest  of  the  localities  which 
the  laws  affect.  I  believe  that  it  would  be  one  of  the  best  things 
that  could  possibly  be  accomplished  by  this  Convention  if  some 
constitutional  provision  could  be  enacted  which  would  tend  to 
reduce  the  laws  in  relation  to  cities  to  some  uniform  system,  but 
should  yet  be  sufficiently  elastic  so  that  in  cases  which  demand 
special  legislation  it  could  be  had.  Such  a  constitutional  provision 
would  result  in  a  growth  of  municipal  law  which  would,  in  the 
course  of  time,  tend  to  remedy  the  evils  from  which  we  suffer  by  the 
present  great  diversity.  I  regard  this  present  measure,  in  so  far 
as  it  contains  that  principle,  as  highly  desirable. 

There  is  another  provision  in  this  measure  which  must  commend 
itself  generally  to  this  Convention,  and  that  is  the  provision  which 
gives  to  the  Governor  of  the  State  the  right,  in  the  last  resort,  to 
control  the  police  officers  of  the  State.  The  Governor,  since  the 
foundation  of  this  State,  has  had  the  power  to  remove  the  sheriff 
of  any  county  of  the  State,  if  that  sheriff  did  not  properly  perform 


August  9.]  CONSTITUTIONAL  CONVENTION.  243 

his  duties.  The  head  of  the  police  in  a  city  is  simply  an  assistant 
sheriff  for  the  preservation  of  the  peace  of  the  city,  or  the  preserva- 
tion of  the  peace  of  the  State;  and  this  is  another  very  desirable 
principle  which  is  incorporated  in  this  bill. 

The  other  principle  which  is  incorporated  here  is  the  principle  of 
equal  minority  and  majority  representation  on  election  boards.  I 
do  not  think  that  that  provision  is  especially  pertinent  to  this 
measure,  because  I  believe  that  should  be  a  general  measure  cover- 
ing the  entire  State.  That,  I  think,  will  be  almost  the  universal 
opinion  of  this  Convention. 

In  considering,  however,  some  of  the  details  of  this  measure,  in 
relation,  first,  to  the  provisions  for  cumulative  and  proportionate  and 
minority  representation,  I  do  not  object  to  that  provision,  provided 
it  may  be  adopted  only  on  the  consent,  by  vote,  of  any  municipality 
which  desires  to  have  it.  It  should  not  be  imposed  upon  one  city, 
or  upon  any  class  of  cities,  in  the  State  of  New  York,  except  by 
express  consent  and  desire  of  the  city.  I  do  not  regard  it  as  a  very 
practical  suggestion,  however,  in  the  first  instance,  because  I 
believe  that  the  decided  sentiment  of  this  Convention  is  against  such 
a  system  of  voting. 

Mr.  Jesse  Johnson  —  Will  the  gentleman  allow  me  to  make  a 
suggestion?  As  the  committee  understands  it,  nothing  relating  to 
the  membership  of  constituent  parts  of  the  common  council,  or  as 
to  its  election,  can  be  imposed  without  the  consent  of  the  city. 

Mr.  E.  R.  Brown —  I  did  not  so  understand  the  provision,  Mr. 
Chairman.  With  respect  to  the  division  of  the  cities  of  the  State 
into  classes,  that  is  a  desirable  provision,  in  my  opinion,  because  I 
regard  cities  of  a  million  or  more  of  inhabitants  as,  from  the  nature 
of  things,  easily  governable  in  a  general  way  by  the  same  laws;  cities, 
of  200,000  inhabitants,  easily  governable  in  a  general  way  by  the 
same  laws;  but  I  should  differ  very  materially  from  the  Committee 
on  Cities  in  relation  to  this  second  division.  There  should 
be  many  more  divisions;  at  least  two  more  divisions,  in 
my  opinion.  There  is  a  large  number  of  cities  in  this 
State,  and  it  has  been  stated  upon  this  floor  that  sixty-one  per 
cent  of  the  population  of  the  State  of  New  York  live  in  cities;  but 
cities  of  10,000,  of  15,000,  even  of  25,000  inhabitants  are  substan- 
tially rural  communities.  They  should  never  be  spoken  of  in  the 
same  way  as  the  great  city  of  New  York.  It  is  a  misnomer  in  rela- 
tion to  them.  As  to  cities  of  10,000,  15,000  and  25,000  inhabitants, 
the  citizens  in  them  have  the  same  degree  of  acquaintance  and 
familiarity  with  one  another,  take  the  same  interest  in  public  affairs 
that  they  do  in  the  smaller  towns  of  the  State.  When  you  pass 


244  REVISED  RECORD.  [Thursday, 

beyond  that  line  and  get  into  cities  of  35,000,  or  4o,ooj  or  50,000 
inhabitants,  you  then  begin  to  reach  something  of  that  spirit  which 
has  grown  up  in  these  days  of  neglecting  the  duties  of  citizenship 
in  cities;  but  I  do  not  believe  that  cities  of  over  25,000  inhabitants, 
40,000  or  50,000  inhabitants,  should  be  classed  with  a  city  like 
Buffalo,  with  300,000. 

Mr.  Becker  —  Will  the  gentleman  permit  a  suggestion?  The 
classes  made  by  this  bill  are  those  of  over  50,000  population,  one 
class;  and  those  under  50,000,  another. 

Mr.  E.  R.  Brown  —  I  have  pot  made  myself  clear.  I  believe  that 
cities  under  25,000  or  30,000  should  be  a  class  by  themselves.  I  do 
not  believe  that  the  city  of  Buffalo  should  be  in  the  same  class  with 
New  York  and  Brooklyn.  Neither  do  I  believe  that  the  city  of 
Syracuse  should  be  in  the  same  class  with  Buffalo.  There  are  many 
subjects  in  relation  to  which  the  Legislature  can  pass  laws  that 
will  affect  equally  all  the  cities  of  the  State,  and  should  so  affect 
them.  But,  when  you  come  to  divide  the  cities  into  classes,  those 
matters,  which  can  only  relate  from  their  nature  to  one  particular 
class,  should  relate  only  to  cities  which  are  approximately  of  the 
same  size.  The  main  point,  however,  that  I  would  insist  upon  in 
relation  to  this  measure,  is  that  of  uniformity  of  legislation.  I  think 
that  is  the  most  desirable  end  that  can  be  attained;  and  so  far  as 
cities  of  the  size  of  Watertown,  or  of  Oswego,  or  the  smaller  cities 
of  the  State,  are  concerned,  I  believe  that  in  relation  to  all  the 
subjects  which  are  enumerated  in  this  bill,  and  in  relation  to  a 
large  number  of  subjects  that  are  not  enumerated  in  it  uni- 
form laws  may  be  made  which  will  substantially  meet  all  of  the 
wants  of  those  cities. 

Mr.  Choate  —  Mr.  Chairman,  I  desire  to  propose  an  amendment, 
if  it  is  in  order,  to  section  4,  which  will  very  much  simplify,  and  I 
think  bring  about  a  union  of  sentiment  upon  that  part  of  the  pro- 
posed scheme  of  the  Committee  on  Cities,  which  will  get  rid 
of  all  this  complicated  machinery  that  is  made  dependent 
upon  the  assent  of  the  mayor  or  the  mayor  and  the  common 
council,  and  to  get  rid  of  what  seems  to  me  to  be  the  objectionable 
feature  of  a  double  veto,  one  in  the  hands  of  the  mayor  and  one  in 
the  hands  of  the  Governor,  but  to  provide  a  mode  by  which  the 
interference  of  the  State  in  the  internal  affairs  of  cities  shall  be 
checked,  but  not  taken  away.  I  do  not  believe  that  the  people  of 
this  State  will  ever  consent,  or  ought  to  be  asked  to  consent,  to 
abandon  their  sovereignty  over  any  division  of  the  city  in  respect 
to  any  of  its  affairs;  and  I  would,  therefore,  propose  as  an  amend- 


.August  9.]  CONSTITUTIONAL  CONVENTION.  245 

ment  to  section  4  what,  as  I  understand  it,  will  be  entirely  within 
the  spirit  of  the  report  of  the  committee,  although  a  very  serious 
alteration  of  this  section  4,  I  would  have  it  read  in  this  way: 

"  Laws  may  be  passed  affecting  one  or  more  of  the  subjects  enu- 
merated in  the  last  preceding  section,  in  any  city,  by  a  majority  of 
the  members  elected  to  both  houses,  if,  after  a  full  hearing  by  the 
mayor,  he  assents  to  the  same,  or  by  a  vote  of  two-thirds  of  the 
members  elected  to  both  houses,  if  he  refuses  his  assent." 

Mr.  Chairman,  I  have  seen  the  day  in  the  city  of  New  York  when, 
in  respect  to  these  internal  affairs  of  the  city,  which  you  will  observe 
involve  the  expenditure  of  somewhere  approaching  twenty  millions 
of  dollars  a  year,  a  prohibition  by  the  Constitution  upon  the  Legis- 
lature from  interfering  would  have  been  destructive  of  the  true 
interests  of  the  people  of  the  city,  and,  therefore,  of  the  people  of  the 
State.  I  am  surprised  at  the  quarter  from  which  the  opposition  to 
this  feature  of  the  bill  has  chiefly  originated. 

Mr.  Chairman,  in  the  city  of  New  York,  about  which  I  suppose 
the  principal  interest  in  this  amendment  centres,  I  think  we  need 
from  time  to  time  rescue  by  the  Legislature.  Now,  what  is  the 
difficulty?  Constant  interference  by  the  Legislature  in  our  muni- 
cipal affairs  however  potent,  at  the  instigation  of  anybody,  however 
interested  —  that  ought  not  for  a  moment,  or  for  any  time  hereafter 
to  be  allowed.  I  do  not  believe  that  the  millennium  of  municipal 
affairs  is  coming  whatever  we  do  or  whatever  we  leave  undone.  I 
agree  with  the  gentleman  from  Kings,  who  spoke  so  eloquently 
about  it,  that  no  form  of  Constitution,  no  form  of  legislation,  will 
give  good  government  in  such  a  city  as  "New  York  as  long  as  the 
people  of  the  city  —  people  who  are  interested  in  its  prosperity  and 
welfare  —  see  fit  to  abandon  the  conduct  of  their  municipal  affairs 
to  a  set  of  men  who  make  it  their  chief  interest,  and  their  personal 
interest,  and  their  daily  and  nightly  and  yearly  business,  to  manage 
it  for  them.  Now,  there  are  two  evils  to  be  avoided.  One  is  the 
abandonment  of  the  power  of  the  State  over  the  city.  In  my  judg- 
ment, as  I  said  when  I  began,  the  people  of  the  State  never  will 
consent  to  that  in  any  form.  The  other  is,  to  prevent,  if  we  can, 
constant,  causeless,  unchecked,  undeliberate,  unnotified  interference 
with  its  domestic  affairs.  It  seems  to  me  that  if  you  will  adopt  an 
amendment  to  section  4,  somewhat  in  the  form  which  I  have  pro- 
posed, you  will  accomplish  these  two  objects.  You  will  reserve  to 
the  State  its  sovereignty;  you  will  give  to  the  city  an  opportunity 
to  be  heard  in  respect  to  every  intervention  in  its  municipal  affairs, 
and  you  will  still  reserve  to  the  State,  by  a  requisite  and  suitable 
majority  —  a  three-fifths  vote  —  power,  if  the  true  welfare  of  the 


246  REVISED  RECORD.  [Thursday/ 

State  and  the  city  require  it,  to  pass  the  law  in  spite  of  the  objection 
of  the  mayor.     I  offer  that  as  an  amendment  in  writing. 

Mr.  Jesse  Johnson  —  Mr.  Chairman,  I  desire  to  say  —  and  I 
think  I  voice  the  sentiment  of  the  Committee  on  Cities  that  reported 
this  measure  —  that  this  proposition  is  entirely  in  accord  with  their 
views.  You  will  find  it  at  the  bottom  of  page  six.  It  is  suggested 
that  the  amendment  be  read. 

The  Chairman  —  The  Secretary  will  read  the  amendment. 

The  Secretary  then  read  the  amendment  offered  by  Mr  Choate, 
as  follows: 

"  Before  the  word  '  laws  '  in  the  first  line,  insert  the  word  '  special/ 
and  after  the  word  '  city,'  in  the  second  line,  strike  off  all  the  rest  of 
the  section,  and  insert,  '  by  a  majority  of  the  members  elected  to 
both  houses,  if  after  a  full  hearing  of  the  mayor,  he  assents  to  the 
same,  or  by  a  vote  of  two-thirds  of  the  members  elected  to  both 
houses,  if  he  refuses  his  assent.' " 

Mr.  Johnson  —  Mr.  Chairman,  I  was  about  to  say  that  on  page 
six  of  document  No.  33  of  the  report  of  the  Cities  Committee,  they 
state  that  the  purpose  was  to  have  a  consent  from  the  city  as  to  these 
special  matters,  and  the  committee  will  most  cheerfully  accept,  and 
thank  the  mover  for  any  resolution  that  makes  this  any  more  accept- 
able in  manner  or  mode,  if  that  may  be.  The  suggestion,  however, 
of  the  committee  would  be  this  —  and  I  hope  it  will  meet  with  the 
acceptance  of  the  President  of  the  Convention  —  that  in  many  of  the 
cities,  many  of  the  interior  cities,  the  common  council  exercises  a 
very  large  and  important  function,  and  they  would  feel  notably  in 
cities  like  Rochester,  where  they  have  almost  the  ideal  common 
council,  that  my  friend  from  Kings  has  pictured  —  they  would  feel 
that  it  would  be  hardly  fair  that  they  also  might  not  be  heard.  But 
the  principle,  sir,  is  on  the  line  we  suggest,  and  we  cheerfully  endorse 
the  spirit  and  the  purpose  of  the  amendment. 

Mr.  E.  R.  Brown  —  Mr.  Chairman,  I  would  like  to  offer  an 
amendment  if  it  is  in  order. 

The  Chairman  —  The  Chair  suggests  that  possibly  this  amend- 
ment should  not  be  considered  until  that  section  is  reached,  unless 
with  the  consent  of  the  Committee  of  the  Whole. 

Mr.  Hotchkiss  —  Mr.  Chairman,  I  offer  a  substitute  for  the  whole 
measure  under  consideration,  except  section  2,  covering  the  ques- 
tion of  separating  municipal  from  State  and  national  elections.  That 
section  I  am  satisfied  with  if  the  objection  raised  to  it  by  Mr.  Jenks 
is  overcome.  His  objection  to  the  definition  contained  in  that  sec- 


August  Q.J  CONSTITUTIONAL   CONVENTION.  247 

tion  of  the  phrase  "city  officers"  is  a  very  pertinent  objection;  and 
it  is  perhaps  to  be  regretted  that  we  have  not  had  the  benefit  on 
the  Cities  Committee  of  one  sitting  as  a  member  thereof  who  has 
had  the  very  considerable  experience  in  municipal  affairs  that  Mr. 
Jenks  has  had.  I  will  attempt  with  his  assistance,  and  the  assistance 
of  others,  to  correct  that  definition,  and  I  will  then  at  a  subsequent 
time  offer  a  substitute  for  section  2.  The  substitute  which  I  now 
offer  to  the  amendment  proposed  by  the  Cities  Committee  will  be 
found  in  substance  in  proposed  constitutional  amendment  (introduc- 
tory No.  205,  printed  No.  207),  and  I  wish  members  would  all  turn 
to  that  upon  their  files  and  follow  me,  as  I  can  indicate  briefly  the 
amendments  which  I  have  made  to  it.  The  proposition  or  proposed 
constitutional  amendment,  as  it  is  upon  our  files,  comes  from  the 
committee  of  twenty-one,  as  it  is  called.  I  stated  yesterday,  when  I 
referred  to  it,  that  I  regarded  it  as  a  most  excellent  example  of 
correct  form  in  draughtmanship.  I  leave  the  whole  of  the  first 
page  unaltered.  On  the  second  page,  beginning  with  the  words 
"  and  that,"  on  line  two,  I  strike  out  "  and  that  in,"  being  the  last 
three  words  on  line  two,  down  to  and  including  "  council,"  in  line 
eight.  The  effect  of  that  amendation  is  to  strike  out  the  proposition 
for  making  proportional  representation,  and  the  election  of  a  com- 
mon council  upon  a  general  ticket  from  the  city  at  large,  com- 
pulsory in  cities  of  over  500,000  inhabitants,  and  to  leave  it  optional 
in  every  city  in  the  State  with  the  electors  in  each  city  whether  they 
shall  introduce  those  provisions  into  their  charters.  I  strike  out  the 
word  "  other  "  in  line  nine,  leaving  it  to  read,  "  whereby  in  any 
city."  I  make  no  other  change  on  the  second  page. 

I  then  take  a  part  of  the  third  section  of  the  proposition  submitted 
by  the  Cities  Committee,  and  I  define  the  phrase  "  municipal  pur- 
poses," as  used  in  the  preceding  section  of  the  substitute  as  I  pro- 
pose it;  so  that  the  phrase  will  be  defined  exactly  as  it  is  defined 
by  the  Committee  on  Cities,  but  adding,  "  police,  charities  and  cor- 
rections." I  simply  include,  among  the  purposes  covered  by  the 
phrase  "  municipal  purposes,"  "  police,  charities  and  corrections." 

The  next  section,  of  the  substitute  is  taken  also  from  the  proposi- 
tion of  the  Committee  on  Cities. 

Mr.  M.  E.  Lewis  —  Mr.  Chairman,  may  I  interrupt  the  gentleman 
one  moment?  Does  he  leave  section  3  as  it  now  stands,  with  simply 
the  addition  of  a  definition  of  ''municipal  purposes?" 

Mr.  Hotchkiss  —  Mr.  Chairman,  no,  I  use  no  part  of  section  3 
except  this  definition.  I  propose  a  section  in  my  substitute  which 
reads  in  this  way:  The  term  "municipal  purposes"  includes,  (T) 


248  REVISED  RECORD.  [Thursday, 

streets  and  highways,  with  the  exception  of  bridges,  tunnels,  etc., 
(2)  parks  and  public  places,  (3)  and  so  on  and  so  forth. 

Mr.  Tesse  Johnson  —  Is  it  the  same  as  ours? 

Mr.  Hotchkiss  —  Identically  the  same  as  yours,  only  adding 
"police,  charities  and  corrections." 

The  next  section  of  the  substitute  is  taken  in  part  from  the  propo- 
sition of  the  Committee  on  Cities,  and  reads:  "The  Governor  may 
remove  the  commissioners,  superintendent  or  other  head  of  the 
police  officers  of  any  city  for  cause,  upon  charges  preferred  before 
him.  A  copy  of  such  charges  shall  be  served  upon  the  official  sought 
to  be  removed,  and  an  opportunity  afforded  him  to  be  heard  in  his 
defense." 

The  third  section  of  the  proposition  reads  as  follows: 

"  For  the  purpose  of  securing  fair  elections,  equal  majority  and 
minority  representation  shall  be  provided  in  all  election  boards." 

It  may  be  necessary  to  change  the  phraseology  of  that  section. 
I  am  not  altogether  pleased  with  it,  but  I  have  allowed  it  to  remain 
as  it  was  reported  from  the  Committee  on  Cities,  in  order  that  the 
disposition  which  we  manifest  in  expressing  in  simple  and  clear  lan- 
guage the  desire  to  secure,  in  every  election  board  in  the  State, 
whether  it  be  in  a  city  or  in  a  county  or  in  a  village,  equal  representa- 
tion between  the  several  parties,  might  appear  clearly  and  distinctly 
to  the  entire  Convention. 

Mr.  Jesse  Johnson  —  Mr.  Chairman,  does  the  gentleman's  propo- 
sition go  to  having  the  minority  representatives  appointed  by  them 
or  only  from  them? 

Mr.  Hotchkiss  —  I  do  not  go  into  any  question  of  legislation. 
One  of  the  great  merits  of  this  amendment  proposed,  as  it  comes 
from  the  committee  of  twenty-one,  lies,  in  my  judgment,  in  the  fact 
that  it  confines  itself  to  matters  which  are  properly  expressed  in  and 
regulated  by  the  Constitution,  and  it  leaves  it  to  the  Legislature  to 
formulate  the  details  and  to  carry  out  the  expressed  will  of  the  peo- 
ple, as  it  is  prescribed  in  the  Constitution.  If  the  Legislature  shall 
say  that  the  appointing  power  shall  lie  in  the  State,  well  and  good  — 
although  I  would  object  to  it  for  one.  If  they  are  content  to  leave 
it  where,  in  my  judgment,  it  should  be  left,  namely,  to  the  muni- 
cipalities or  localities  where  the  elections  are  held,  I  think  it  would 
be  very  much  better.  But  it  is  not  the  detail,  it  is  the  principle,  for 
which  we  should  strive,  and  which  the  minority  in  this  Convention, 
I  am  certain,  will  stand  shoulder  to  shoulder  with  every  man  in  the 
majority  to  secure,  namely,  the  absolute  divorce  of  partisan  advan- 
tage in  the  casting  and  counting  of  votes. 


August  9.]  CONSTITUTIONAL  CONVENTION.  249 

Mr.  Chairman,  I  shall  not  attempt  to  justify  this  sub- 
stitute at  any  length,  because  I  prefer  to  have  it  printed  and  upon 
our  desks  where  it  may  be  debated  properly  with  the  eyes  of  every 
member  upon  the  word  and  line  of  the  substitute.  I  propose  to 
wait  until  then  for  any  extended  discussion  of  the  merits  of  this 
substitute  over  the  proposition  of  the  Committee  on  Cities.  It 
embraces  every  feature  that  that  proposition  embraces,  home 
rule,  proportionate  representation,  the  election  of  the  municipal 
council  from  the  whole  city  or  by  districts,  as  the  city  may  choose, 
and  it  retains,  all  in  proper  and  constitutional  language,  the  control 
of  the  State  upon  municipal  affairs  where  that  control  needs  to  be 
exercised  in  the  interest  of  all  the  people  of  the  State.  It  extends  in 
detail,  in  the  definition  of  "  municipal  purposes,"  the  privilege  of 
the  municipal  legislature  to  act  with  reference  to  those  three  sub- 
jects, namely,  police,  charities  and  corrections.  I  know  that  the 
suggestion  to  include  police  will  meet  with  very  great  opposition  on 
the  part  of  some.  But  without  attempting  to  argue  the  question  at 
length,  let  me  ask  you,  Mr.  Chairman,  whether  when  we  retain  in 
the  hands  of  the  Governor  of  the  State  the  power  to  remove  the 
heads  of  the  police  department  in  any  city  —  whether  when  we  do 
that  —  we  do  not  reserve  to  the  State  all  that  is  necessary  for  its  pro- 
tection? If  the  enforcement  of  the  laws  by  the  police  department  in 
any  locality  is  lax;  if  the  emergency  arises  when  the  public  interest 
demands,  as  in  case  of  mob  or  riot,  that  the  head  of  the  police 
should  be  removed,  does  not  the  reservation  and  the  granting  of  the 
power  of  removal  to  the  Governor,  give  to  the  people  all  that  they 
ought  to  ask  and  all  that  they  require  for  public  safety?  I  think 
that  it  does,  and  I  think  that,  so  far  as  the  mere  regulation  of  the 
affairs  of  the  police  is  concerned,  it  may  be  properly  left  to  the  city 
authorities. 

I  wish  it  to  be  understood  that  this  substitute  does  not  cover  the 
matter  of  the  separation  of  elections.  That  will  be  covered  by 
another  section,  which  may  be  substantially  in  the  words  of  section 
2  of  the  proposition  framed  by  the  Cities  Committee,  with  a  proper 
definition  of  the  phrase  "  city  officers." 

The  Chairman  —  Do  you  understand  that  there  is  already  one 
substitute,  and  that  this  cannot  be  acted  upon  until  that  is  dis- 
posed of? 

Mr.  Hotchkiss  —  What  substitute  do  you  refer  to? 

The  Chairman  —  Mr.  Cookinham  has  already  one  substitute, 
which  was  offered  last  night  or  yesterday. 


250  REVISED  RECORD.  [Thursday, 

Mr.  Hotchkiss  —  A  question  of  information.  Is  my  substitute 
in  order? 

The  Chairman  —  I  do  not  think  your  substitute  can  be  considered 
until  the  proposition  is  perfected. 

Mr.  Hotchkiss  —  What  proposition,  may  I  ask? 
The    Chairman  —  The    proposition    submitted    by    the    Cities 
Committee. 

Mr.  Hotchkiss  —  Then,  may  I  suggest,  if  that  be  so,  Mr.  Cook- 
inham's  proposition  could  not  be  received. 

The  Chairman  —  It  can  be  received  and  may  remain  upon  the 
table,  to  be  taken  up  in  its  proper  order;  but  the  proposition  must 
first  be  perfected,  and  then  the  substitute  acted  upon. 

Mr.  Hotchkiss  —  Is  it  in  order,  Mr.  Chairman,  for  me  to  offer 
this  as  an  amendment  to  Mr.  Cookinham's  substitute? 

The  Chairman  —  I  am  inclined  to  so  hold. 

Mr.  Hotchkiss  —  Perhaps  I  might  accomplish  what  I  think  all 
would  seek  to  aid  me  in  accomplishing,  by  moving  that  my  substi- 
tute be  offered  as  an  amendment  to  the  proposition  of  the  Com- 
mittee on  Cities. 

Mr.  Alvord  —  Mr.  Chairman,  being  very  much  in  favor  of  a  por- 
tion, at  least,  of  the  proposition  of  the  gentleman  at  my  left,  and 
desiring  to  get  out  of  this  muddle  as  much  as  possible,  I  suggest 
that  it  be  offered  as  an  amendment  to  the  proposition  or  substitute, 
offered  by  Mr.  Cookinham,  and  that  when  we  come  into  Convention 
again  a  motion  to  print  all  of  these  matters  will  be  wholly  in  order. 

Mr.  Hotchkiss  —  Will  the  Chair  regard  me  as  having  repeated 
the  very  skilful  language  of  the  gentleman  from  Onondaga? 

The  Chairman  —  It  is  now  offered  as  an  amendment  to  the  sub- 
stitute offered  by  Mr.  Cookinham,  and  will  be  received. 

Mr.  Jesse  Johnson  —  Mr.  Chairman,  we  have  now,  for  the  first 
time,  a  tangible  proposition  from  the  minority  of  the  Cities  Com- 
mittee, and  I  congratulate  the  Convention  upon  it.  That  proposi- 
tion emanated  from  the  Committee  of  Twenty-one,  was  introduced 
by  a  member  of  the  Cities  Committee,  was  very  fully  considered 
and  very  carefully  weighed,  and  there  were  many  and  various  hear- 
ings upon  it.  I  wish  to  say  to  this  Convention  that  verv  much  of 
the  thought  there  is  embodied  in  the  report  which  the  Cities  Com- 
mittee have  presented;  and  I  desire  to  state  further,  that,  having 
been  able  to  see  and  hear  from  and  have  the  written  and  the  spoken 
word  of  those  gentlemen,  one  of  whom  is,  I  believe,  in  this 
room  now,  I  state  that  the  gentlemen  that  presented  that  are  satis- 


August  9.]  CONSTITUTIONAL  CONVENTION.  251 

fied  with  what  our  committee  have  reported.  And  when  that  had 
remained  without  the  indorsement  of  my  friend,  until  those  that 
thought  of  its  provisions  were  satisfied  that  they  were  practically 
embodied  here,  it  is  pressed  forward  now,  after  those  who  produced 
it  are  satisfied  with  the  amendment  here.  What,  then,  is  the  differ- 
ence between  them?  My  friend  suggests  that  it  would  have  been 
well  if  some  gentleman  familiar  with  municipal  law  — 

Mr.  Hotchkiss  —  Mr.  Chairman,  may  I  interrupt  the  gentleman? 

1  did  not  suggest  anything  of  the  kind.     I  said  that  I  regarded  it  as, 
perhaps,  unfortunate  that  we  had  not  upon  the  committee  a  gentle- 
man so  intimately  familiar  with  municipal  law  as  the  gentleman 
from  Kings,  who  we  know  served  for  three  terms  of  corporation 
counsel  of  the  city  of  Brooklyn.     I  said  it  with  no  reflection. 

Mr.  Johnson  —  I  have  spent  about  half  my  life  in  municipal  law. 
Now,  the  proposition  turns  on  this  question.  My  friend  desires  to 
arrest  the  power  of  the  State  in  matters  that  we  cannot  arrest  it  in 
or  interfere  with  it  at  all.  And  that  gives  us  an  opportunity  to 
explain.  We  do  not  do  anything  as  to  education;  we  do  not  do 
anything  as  to  charities;  we  do  not  do  anything  whatever  as  to 
them;  we  leave  them  as  they  are,  under  the  protection  of  section 

2  of  article  10,  which  says  they  must  be  administered  by  local  officers. 
We  think  these  are  matters  of  the  State,  and  I  desire  to  say  that  the 
Committee  of  Twenty-one  so  construed  their  definition,  and  never 
would  have  presented  the  article  that  they  did  present  did  they  not 
construe  it  that  way.     They  understood  the  word  "  municipal "  left 
those  out.     My  friend  would  put  them  in.     It  is  then  said  that  the 
word  "  municipal  "  has  not  a  clear  definition.     "  Municipal  "  means 
"city;"  it  is  the  correlative  of  it.     He  says  that  a  police  officer  is 
not  a  city  officer.     My  friend  from  Kings  says  so.     A  police  officer 
is  a  city  officer,  a  municipal  officer,  or  else  he  is  not  within  the 
protection,  as  to  being  elected  or  appointed  from  the  city.     (Arti- 
cle 10.)    The  rule  that  holds  that  the  State  cannot  appoint  a  police 
officer,  or  a  superintendent  of  the  poor,  holds  that  they  are  city 
officers. 

Now,  one  suggestion  more  as  to  elections.  My  friend  is,  I  think, 
a  little  in  error  as  to  the  proposition  of  the  Committee  on  Cities. 
He  says  that  he  would  not  have  any  State  board  of  elections,  but 
would  leave  it  to  the  Legislature  to  organize  such  a  board,  if  they 
saw  fit.  Do  I  quote  the  gentleman  right?  Would,  leave  it  to  the 
Legislature  to  provide,  if  they  saw  fit.  Gentlemen  of  the  Conven- 
tion, that  is  all  that  our  amendment  does,  and  it  does  exactly  that ; 
and,  unless  our  amendment  is  passed,  it  cannot,  in  the  judgment  of 
the  committee,  be  done,  because  of  the  inhibitive  provisions  of 


252  REVISED  RECORD.  [Thursday, 

section  2  of  article  10.  So  that  he  entirely  justifies  and  makes  neces- 
sary the  provisions  which  we  have  put  in  as  to  elections. 

Mr.  Cochran  —  Mr.  Chairman,  will  the  gentleman  from  Kings 
allow  me  to  call  his  attention  to  general  order  No.  8,  which  has 
been  reported  from  the  Suffrage  Committee,  and  which  covers  the 
question  of  bi-partisan  election  boards,  and  to  ask  him  if  that  would 
be  satisfactory  to  the  Cities  Committee? 

Mr.  Johnson  —  It  would  be  very  satisfactory  to  the  Cities  Com- 
mittee, if  it  only  went  far  enough.  The  Cities  Committee  believe 
that  it  is  a  delusion  and  a  snare  to  say  that  the  Republican  party 
is  protected,  because  half  of  the  inspectors  of  election  are  appointed 
out  of  one  or  two  hundred  thousand  votes  by  a  man  of  the  other 
party.  We  do  not  want  our  watchers  appointed  by  the  person  who 
is  vitally  interested  in  seeing  our  vote  small.  We  do  not  say  that 
it  will  always  be  abused,  but,  if  you  concede  us  the  principle,  as 
you  do,  why  not  give  us  the  thing?  Why  give  us  a  principle  which 
is  delusive?  Give  us  the  principle,  and  add  one  thing  to  it,  which 
is  this  —  that  there  shall  be  representatives,  not  only  out  of  a  body 
of,  but  from  and  appointed  by,  the  representatives  of  the  party. 
Without  that,  what  you  give  us  is  merely  ashes  of  the  fruit,  a  delu- 
sion; and  when  I  courteously  suggested  to  the  gentleman  that  it 
should  make  provision  that  the  counters  should  represent  the  party, 
and  not  merely  be  appointed  from  out  of  their  number,  he  said  that 
was  legislative.  I  submit,  sir,  that  there  is  nothing  more  important 
proposed  in  the  Constitution  than  that  elections  shall  be  preserved, 
and  nothing  more  necessary,  if  we  preserve  it  by  bi-partisan  boards, 
than  to  say  that  they  shall  be  appointed  by  bi-partisan  boards.  So 
that  I  say  his  position  as  to  elections  entirely  overlooks  the  fact  that 
we  cannot  do  what  he  says  we  should  do  without  amending  the 
Constitution.  He  indorses  our  proposition.  His  amendment  to  sec- 
tion 2,  as  to  elections,  entirely  overlooks  the  fact  that  municipal 
officers  are  city  officers,  and  city  officers  are  municipal  officers, 
within  the  line  of  The  People  v.  Draper,  in  15  New  York,  and  the 
entire  line  "of  cases  that  follows.  If  "  municipal "  does  not  mean 
"  city,"  we  will  substitute  the  word  "  city."  He  leaves  out  the  propo- 
sition that  the  representatives  of  the  party  shall  be  representative 
and  overlooks  the  fact  that  so  much  of  the  vital  thought  of  the  Com- 
mittee of  Twenty-one  is  here  with  us,  that  they  hail  with  acclaim  our 
proposition;  and  I  submit,  sir,  when  they  are  satisfied,  it  is  late, 
two  months  after  it  has  been  before  the  committee,  to  hear  the  first 
advocacy  of  it  from  a  member  of  the  committee. 

Mr.  Becker  —  Mr.  President,  I  had  intended  this  morning  to 
consider  quite  fully  some  of  the  provisions  of  this  amendment  as 


August  9.]  CONSTITUTIONAL   CONVENTION.  253 

proposed  by  the  committee,  but  on  coming  here,  instead  of  finding, 
on  the  surface,  at  least,  the  captious  criticisms,  the  sneering  allu- 
sions, the  attempt  to  defeat  by  methods  of  ridicule,  rather  than  of 
legitimate  argument  and  consideration  with  which  this  debate 
opened,  I  found  that  my  friends,  with  some  of  whom  we  have  sat 
long  and  faithfully  on  this  committee,  had  changed  their  modus 
operandi  of  defeating  this  measure.  The  scheme  seems  now  to  be 
to  appear  plausibly  anxious  to  bring  about  great  and  beneficent 
reforms  in  municipal  government,  to  offer  for  the  first  time,  as  the 
chairman  suggests,  after  months  of  discussion  in  this  committee, 
proposals  which  learned  gentlemen,  conscientious  gentlemen,  able 
gentlemen,  but,  may  I  add,  theoretical  gentlemen,  constituting  the 
membership  of  good  government  and  reform  clubs,  have  brought 
forward  for  the  consideration  of  this  Convention.  I  reiterate  what 
has  been  said  by  the  chairman  of  the  Cities  Committee,  that  such 
was  the  intention  of  the  majority  of  the  Committee  on  Cities,  was, 
I  repeat,  its  intention,  and  the  majority  believe  that  it  has  effected 
that  intention  into  a  purpose  and  result  of  giving  substantially  all 
that  is  embodied  in  the  amendment  offered  by  Mr.  Hotchkiss,  which 
is,  in  part,  the  amendment  proposed  by  the  Committee  of  Twenty- 
one  of  New  York  eliminating  from  it,  as  is  eliminated  in  the  amend- 
ment, the  two  real  things  which  constitute  the  meat  that  there  is  in 
this  cocoanut,  and  that  is,  the  State  control  of  the  police  and  of  the 
elections.  And  in  passing,  while  I  fear  somewhat  that  the  amend- 
ment suggested  by  the  President  of  this  Convention  will  not  bring 
about,  as  soon  as  he  hoped  that  it  would,  that  condition  of  popular  feel- 
ing in  the  cities  which  will  make  the  good  people  of  those  cities  come 
forward  to  the  Legislature  and  demand  what  we  have  said  in  this 
amendment  can  be  given  to  them  free  from  constitutional  limitations 
and  restrictions,  if  it  is  the  opinion,  as  it  seems  to  be,  of  a  large  pro- 
portion of  this  Convention,  that  it  is  the  most,  the  furthest,  measure 
of  home  rule  that  can  be  given,  namely,  to  permit  ultimate  legisla- 
tive action  over  and  above,  and  without  the  consent  of  the  officers 
of  the  municipality,  why,  I  see  nothing  to  do  but  to  accept  it,  and  it 
may  be,  in  the  end,  a  wise  measure.  What  the  committee  had 
hoped  to  do  was  to  provide  that  on  these  special  subjects  which  are 
here  enumerated,  and  which  are  purely  business  matters — just 
as  much  business  matters,  as  the  running  of  a  mill,  the  carrying  on 
of  a  bank,  the  carrying  on  of  a  store  —  that  as  to  those  business 
matters,  into  which  politics  should  never  enter,  and  never  could 
enter  and  never  would  enter,  except  upon  the  basis  of  the  distribu- 
tion of  patronage,  that  on  those  matters  the  locality  should  be  the 
sole  judge  of  what  it  wanted.  In  the  great  cities,  where,  on  account 


254  REVISED  RECORD.  [Thursday, 

of  the  influx  of  foreign  population,  on  account  of  the  ignorance  and 
illiteracy  of  its  voters,  on  account  of  the  very  large  proportion  of 
the  property  owners  of  those  cities  who  do  not  live  in  the  city  and 
have  no  voice  in  its  government,  we  thought  it  wise  that  following 
out  the  lines  already  laid  down,  which  have  imposed  upon  the 
mayor,  as  the  responsible  head  of  the  city,  very  large  powers  of 
appointment,  very  large  powers  of  municipal  control,  we  thought 
it  wise  that  whenever  it  was  proposed,  as  to  these  purely  business, 
mark  you,  and  not  political,  matters,  that  whenever  it  was  thought 
wise  to  change  the  law  applicable  to  cities  in  that  respect,  by  pass- 
ing a  special  law,  which  our  amendment  provides  should  be  especi- 
ally done,  whether  it  be  Buffalo,  or  Troy,  or  Albany,  or  Rochester, 
or  Syracuse,  or  Binghamton,  before  it  could  take  effect,  it  should  be 
absolutely  necessary  that  the  consent  of  the  local  authorities  should 
be  obtained.  In  New  York  and  Brooklyn  the  consent  of  the  mayor; 
in  the  other  cities  the  consent  of  the  mayor  and  common  council. 
Now,  our  central  thought,  in  reference  to  that  idea,  that  germinated 
in  our  minds  and  carried  us  to  conviction,  was  this:  We  dare  not 
now  give  to  these  cities,  as  their  common  councils  are  at  present 
constituted  —  particularly,  now  I  speak  of  the  cities  of  New  York 
and  Brooklyn  —  we  dare  not  give  to  them  absolute  home  rule;  we 
dare  not  give  to  the  common  councils  in  those  cities,  which  have 
been  shorn  of  all  their  powers  for  so  many  years,  which  have  now 
no  voice,  substantially  none,  in  the  matter  of  city  affairs,  except, 
perhaps,  as  almoners  of  a  certain  amount  of  patronage  and  the  distri- 
bution of  certain  franchises  and  privileges;  we  dare  not  give  to 
those  bodies,  any  more  than  we  would  dare  to  give  the  full  powers 
of  a  man  to  a  child  that  was  just  learning  to  walk,  all  the  powers 
of  local  self-government  and  home  rule;  but  we  will  provide  that 
when,  by  experience,  by  making  the  mayor  de  jure  in  the  cities, 
and  the  mayor  and  common  council  de  jure,  where  they  are  now 
de  facto,  the  final  arbiters,  or  chief  arbiters  in  most  instances,  of 
what  is  good  for  the  community,  that  we  will  finally  bring  the  mat- 
ter to  such  a  condition  that  in  time  the  people  of  the  cities  will  find 
it  incumbent  upon  them  to  demand  of  the  Legislature  the  creation 
of  a  local  body,  having  full  legislative  powers,  elected  in  such  man- 
ner as  the  people  desire,  to  which  the  full  powers  of  local  control 
shall  be  given. 

Now,  we  went  a  step  further  than  the  Committee  of  Twenty- 
one  did  in  that  respect.  The  Committee  of  Twenty-one,  as  you  will 
notice,  if  you  have  read  their  amendment,  now  offered  by 
Mr.  Hotchkiss,  provides  that  they  can  only  have  such  a  council, 
"  that  may  determine  at  a  general  election  "  (followed  by  voters  vot- 


August  9.]  CONSTITUTIONAL  CONVENTION.  255 

ing  at  a  special  or  general  election),  "  may  determine  that  the  mem- 
bers of  its  common  council,  or  a  portion  of  the  members,  shall  be 
elected  on  a  general  ticket  from  the  whole  city,  and  with  or  without 
minority  or  proportional  representation  among  such  members." 

Now,  you  will  see,  if  you  read  that  carefully,  the  only  thing  they 
are  allowed  under  that  to  determine,  is  that  the  members  may  be 
elected  from  the  whole  city,  with  or  without  minority  or  propor- 
tional representation  among  such  members.  In  other  words,  the 
only  question  under  that  amendment  that  could  be  submitted  to  the 
people,  is,  shall  you  elect  your,  whole  council  on  a  general  ticket,  and 
shall  there  be  minority  or  proportional  representation  among  its 
members?  Now,  our  committee  thought  that  we  ought  to 
be  more  liberal  than  that;  that  we  ought  to  afford  more 
latitude,  less  limitation;  that  we  should  put  it  in  a  position 
where  if  the  good  people  of  the  city  of  New  York  or  Brooklyn 
wanted  to  have  a  council  of  two  bodies,  one  of  which  should  be 
elected,  as  the  Assembly  is,  by  a  system  of  direct  representation, 
and  the  other  should  be  elected  by  the  citizens  at  large,  with  or  with- 
out this  provision  for  minority  or  proportional  representation,  they 
could  have  the  opportunity  of  getting  them. 

We  went  a  step  further  in  liberality  in  that  respect.  We  provided 
that  they  did  not  have  to  submit  that  question  before  they  could  get 
that  relief  to  the  people.  And  I  ask  my  friend  from  New  York, 
under  the  present  system  of  political  government  and  the  distribu- 
tion of  political  patronage,  when  would  you  ever  get  such  relief  in 
the  city  of  New  York?  When  would  it  be  possible  to  have  it,  with 
a  working  majority  there  in  the  hands  of  one  political  faction  of 
over  fifty  or  sixty  thousand  votes,  when  in  God's  name  would  you 
ever  get  a  council  created  in  any  way  in  accordance  with  this 
provision,  or  the  suggestions  contained  therein,  when  would  it  ever 
be  possible?  You  might  get  it  in  Brooklyn  some  time;  you  might 
get  it  in  the  other  cities  of  the  State  some  time;  but  I  guarantee  you 
that  so  long  as  patronage  is  there  and  patronage  is  distributed,  so 
long  as  that  vast  working  majority,  controlled  and  operated  like  a 
machine,  exists,  the  good  people  of  that  city,  the  taxpayers  of  that 
city,  might  desire  it  ever  so  much,  but  they  would  never  get  it,  not 
within  the  history  of  anybody  who  sits  in  this  Convention,  even  if 
he  lives  to  be  as  old,  as  venerable  and  as  respectable  as  the  oldest 
member  of  it.  They  could  never  introduce  a  reform  of  that  kind  and 
carry  it  through.  So  we  said  in  that  respect  you  need  not  be 
limited  in  going  to  the  people  to  ask  for  this,  which  is  the  colored 
individual  behind  the  pales  of  my  friend's  amendment,  the  amend- 
ment that  he  suggests  and  now  offers.  But  we  say  if  you  get  a 


256  REVISED  RECORD.  [Thursday, 

Legislature  that  desires  to  give  you  this,  and  your  mayor  approves 
of  it,  like  any  other  measure  of  local  legislation,  you  may  have  the 
authority  that  will  provide  for  these  two  councils,  or  we  will  provide 
for  a  single  legislative  council,  with  or  without  this  system  of  voting 
with  which  my  friend  seems  to  find  so  much  fault. 

Mr.  Hotchkiss  —  Mr.  Chairman,  I  rise  to  a  question  of  privilege. 
The  gentleman  has  characterized  me  as  the  author  of  the  substi- 
tute. I  am  not  its  author.  It  came  here  from  the  Committee  of 
Twenty-one,  the  Good  Government  Club,  the  Reform  Club,  and  the 
Republican  Club  of  the  city  of  New  York,  all  combined.  If  he  is 
to  find  any  Ethiopian  behind  that  fence,  he  is  welcome  to  it. 

Mr.  Becker  —  I  find  the  Ethiopian  in  the  portion  of  the  section 
which  my  distinguished  friend  has  stricken  out.  Under  proposition 
or  proposed  constitutional  amendment  No.  207  —  to  which  I  ask  the 
attention  of  the  gentlemen  of  the  Convention,  as  it  displays  how 
utterly  hollow  these  pretensions  are  that  are  made  here  —  the  pro- 
visions were  all  in  from  line  two  to  line  eight,  which  my  friend  has 
stricken  out,  as  follows :  "  That  in  each  city  organized  thereunder, 
which,  by  the  last  preceding  federal  or  State  census,  had  more  than 
eight  hundred  thousand  inhabitants,  the  members  of  the  common 
council  shall  be  elected  on  a  general  ticket  from  the  whole  city,  and 
in  such  manner  that  there  shall  be  minority  or  proportional  repre- 
sentation in  such  council."  That  was  the  thing  that  my  friend 
struck  out. 

Mr.  Hotchkiss  —  May  I  ask  the  gentleman  a  question? 

Mr.  Becker  —  Certainly. 

Mr.  Hotchkiss  —  If  I  understood  the  gentleman  correctly,  he  dis- 
covered his  alleged  Ethiopian  in  the  fact  that  we  sought  to  prevent, 
in  the  city  of  New  York,  the  opportunity,  on  the  part  of  the  people, 
to  elect  their  council  from  districts  in  one  house,  and  from  the  city 
at  large  in  another  house,  so  that  the  lower  branch  could  come  from 
the  city  at  large  and  the  higher  branch  from  districts.  Will  he  point 
out  to  me  anything  that  I  have  struck  out  of  this  proposed  amend- 
ment which  covers  any  such  thing  as  that? 

Mr.  Becker  —  The  gentleman  has  misunderstood  my  meaning. 
I  said  that  the  Committee  on  Cities  thought  wise  to  permit  that  liber- 
ality; but  what  the  Committee  of  Twenty-one  proposed  was  that,  in 
New  York,  if  they  did  have  a  common  council  with  these  general 
powers  that  should  be  elected  on  a  general  ticket,  and  in  order  to 
give  the  good  citizens  of  that  city,  who  are  in  a  hopeless  minority, 
some  representation  in  that  body,  some  opportunity  to  keep  watch 
of  the  expenditure  of  public  money  and  the  conduct  of  municipal 


August  9.]  CONSTITUTIONAL  CONVENTION.  257 

affairs,  there  should  be  in  that  body,  by  constitutional  provision, 
absolutely  embodied  in  our  organic  law,  minority  or  proportional 
representation.  That  is  what  I  meant,  and  that  is  what  I  said,  and  I 
said  that  is  what  he  left  out  of  his  bill,  and  that  is  what  he  has  left 
out,  and  he  simply  provided  that  the  only  contingency  under  which 
New  York  can  ever  have  any  kind  of  minority  representation,  any 
kind  of  protection  to  the  hopelessly  engulfed  minority  in  that  city, 
is  when  his  friends,  constituting  fifty  or  sixty  thousand  majority,  in 
the  goodness  of  their  hearts  and  giving  away  their  claims  to  patron- 
age, which  are  innumerable,  and  from  which  two-thirds  of  them 
get  their  support,  see  fit  to  give  it  to  them,  and  I  ask  again  when 
that  will  be? 

Mr.  Choate  —  Will  Mr.  Becker  allow  me  to  ask  him  a  ques- 
tion, and  that  is,  in  respect  to  the  operation  of  this  scheme.  There  is 
one  point  upon  which  my  mind  is  very  much  concerned.  You  have 
spoken  of  a  faction  in  possession  of  the  city  of  New  York,  and  also 
have  made  an  assertion  against  which  I  seriously  protest;  that  the 
good  citizens  are  in  a  hopeless  minority.  I  believe  them  to  be  in  a 
great  majority.  But  that  is  not  the  point  upon  which  I  rose  to  direct 
my  question.  Assuming  your  theory  that  the  city  of  New  York  is  in 
possession  of  a  political  faction,  and  for  that  there  may  be  some 
grounds,  and  it  has  existed  so  for  a  good  many  years,  and  perhaps 
will  exist  for  a  good  many  years  to  come.  Now,  the  scheme  of  the 
committee,  after  once  giving  powers  which  will  be  in  possession  of 
that  faction,  we  will  assume,  is  to  prevent  the  Legislature  and  Gov- 
ernor from  interfering  except  with  the  assent  of  that  power  repre- 
sented by  the  mayor.  Now,  then  in  the  only  occasional  instance, 
once  in  a  few  years,  of  the  Governor  and  Legislature  being  in  oppo- 
sition to  that  power,  is  the  only  time  when  relief  could  come  to 
what  you  call  "  the  good  citizens  of  the  city  '•'  as  against  that  faction. 
What  I  want  to  know  is,  whether  the  effect  of  your  scheme  as  a 
whole  is,  to  prevent  on  the  only  occasion  when  relief  is  possible, 
when  they  are  in  accord  with  your  supposed  faction,  the  two 
together  doing  what  they  please  with  the  affairs  of  the  city.  When 
they  are  in  conflict  and  you  require  the  assent  of  the  faction,  how 
can  the  State  come  to  the  rescue  of  the  city  at  all.  (Applause.) 

Mr.  Becker  —  I  understand  that  this  proposed  amendment  of  the 
Committee  on  Cities  provides  for  two  classes  of  laws;  one  which 
is  known  as  general  city  laws,  and  the  other  which  is  known  as 
special  city  laws.  My  impression  was,  and  if  I  am  wrong  about  it 
no  one  will  hasten  more  rapidly  than  I,  and  I  think  the  other  mem- 
bers of  the  committee,  to  correct  the  amendment  in  that  particular, 

17 


258  REVISED  RECORD.  [Thursday, 

if  they  have  the  opportunity  —  that  under  this  bill,  if  the  occurrence 
took  place  to  which  the  President  alludes,  in  which  the  city  of  New 
York  desired  to  have  a  new  charter,  providing  for  a  central  council 
with  minority  representation  or  anything  of  that  kind,  my  impres- 
sion is  —  I  may  be  wrong  about  it,  and  the  suggestion  of  the  Presi- 
dent implies  that  he  is  in  doubt  about  it,  and,  certainly,  where  so 
able  and  astute  a  lawyer  as  he  is  is  in  doubt  about  it  we  would  do 
well  to  pause  and  consider  it  —  but  my  impression  was  that  under 
the  provisions  of  the  present  bill,  if  that  occasion  occurred,  it 
would  be  entirely  in  the  power  of  the  Legislature  to  give  a  proper 
and  substantial  charter  under  the  guide  of  a  general  law  to  the  city 
of  New  York,  but  that  if  after  the  charter  was  once  given  and  the 
powers  had  been  there  reposed,  then  as  to  the  special  matters 
which  we  have  enumerated  here,  and  which  we  regard  as  purely 
business  matters,  as  I  have  before  stated,  it  was  desirable  to  have 
any  special  law  adopted,  that  then  the  special  law  could  be  adopted 
by  obtaining  the  consent  of  the  local  authorities.  • 

Now,  I  say  again  what  I  said  at  the  outset.  I  am  perfectly  pre- 
pared, if  it  is  the  judgment  of  men  of  experience  and  ability,  who  are 
there  on  the  ground  and  understand  the  local  situation,  as  the  Presi- 
dent of  this  Convention  does,  and  I  think  the  members  of  the  Cities 
Committee  would  be  willing  to  accept  the  amendment  which  he 
proposes,  if  he  thinks  it  will  cure  the  evil.  What  I  said  was  not  in 
-criticism  of  his  amendment.  It  was  merely  for  the  purpose  of  show- 
ing that  what  was  brought  on  here  at  this  late  day,  as  an  amend- 
ment to  the  proposed  amendment  of  the  Committee  on  Cities,  was 
not  offered  in  good  faith  and  did  not  do  what  it  proposed  to  do. 
My  criticism  had  no  reference  whatever  to  the  proposed  amend- 
ment of  the  President.  It  simply  had  reference  to  the  gentleman 
here  who  has  foster-fathered  or  foster-mothered,  if  you  please,  the 
proposition  of  the  Committee  of  Twenty-one.  Now,  all  these  matters 
are  really  not  matters  of  substance  and  can  be  taken  care  of  at  the 
proper  place  and  at  the  proper  time,  and  I  have  no  doubt  that  will 
be  done.  I  do  not  desire  to  take  up  the  time  of  the  Convention 
further,  but  simply  to  ask  your  attention  for  one  moment  in  refer- 
ence to  the  policy  and  principles  involved  in  regard  to  the  provisions 
for  the  selection  of  these  boards  of  election  inspectors.  I  am  deeply 
gratified  and  greatly  pleased  to  hear  from  my  friend,  Brown,  from 
Watertown,  for  whom  I  have  the  utmost  respect,  who  comes  from 
one  of  the  counties  in  which  there  is  not  a  very  large  city,  and  who 
says  he  is  willing  to  have  this  principle  applied  to  the  whole  State. 
I  do  not  think  there  would  be  the  slightest  objection  on  the  part  of 
the  Committee  on  Cities  to  have  it  so  apply.  We  believed  it  was  a 


August  9.]  CONSTITUTIONAL  CONVENTION.  259 

good  thing.  We  believed,  after  the  most  careful,  the  most  pains- 
taking, the  most  thoughtful,  and,  I  might  say,  the  most  powerful, 
consideration  of  the  situation,  of  how  to  provide  for  purity  of  elec- 
tions and  the  protection  of  the  citizen  in  the  exercise  of  the  elective 
franchise,  that  this  proposed  scheme  was  a  good  one,  and  we  believe 
sincerely  and  earnestly  it  is  a  good  one. 

I  wish  five  minutes  of  your  time  to  tell  you  why  we  believe  it  to  be 
a  good  one,  although  the  whole  ground,  it  seems  to  me,  was 
thoroughly  covered  by  Mr.  Johnson,  but,  as  he  had  so  much 
ground  to  cover  in  his  speech,  perhaps  he  did  not  make  it  quite  so 
clear  as  it  ought  to  be  made.  Now,  how  are  the  election  inspectors 
at  present  appointed?  There  is  a  provision  in  the  statute  adopted 
last  year  for  bi-partisan  election  boards.  They  are  appointed  in 
New  York  city  by  the  police  board.  In  Brooklyn  they  are  appointed 
by  the  board  of  election  commissioners,  as  they  are  called,  who  are 
in  turn  appointed  by  the  mayor,  and  are  his  creatures,  removable 
by  him  at  will.  They  are  appointed  in  Buffalo  by  the  common 
council  of  the  city  of  Buffalo,  and  without  the  approval  of  the  mayor, 
as  I  now  recollect  it. 

Mr.  Hotchkiss  —  Will  the  gentleman  give  way? 

Mr.  Becker  —  I  prefer  to  finish  what  I  am  saying  now.  And  it  is 
provided  in  the  law  now,  as  I  understand  it,  that  the  sole  power  of 
appointing  these  men  is  absolutely  limited  to  the  local  authorities  in 
these  cities;  that  the  State  has  no  control  over  them  whatever.  I 
say  again  that  in  New  York  city  they  are  appointed  by  the  police 
commissioners,  who  are  the  mayor's  creatures,  and  in  Brooklyn  by 
the  election  commissioners,  who  are  the  mayor's  creatures,  and  in 
Buffalo  by  the  common  council,  with  or  without  the  consent  of  the 
mayor,  I  have  forgotten  how  that  is. 

Mr.  Hotchkiss  —  Mr.  Chairman,  may  I  implore  the  gentlemen, 
in  the  interest  of  the  statute  law  of  this  State,  to  give  way  for  a 
question? 

Mr.  Becker  —  I  decline  to  give  way. 

Mr.  Hotchkiss  —  The  statutes  are  gone! 

Mr.  Becker  —  The  statutes  are  not  gone,  because  the  gentleman 
has  them  in  his  hand  and  can  use  them  whenever  he  wishes. 
What  I  desire  to  say,  without  interruption,  is  that  at  present  the 
election  boards  are  controlled  solely  by  the  local  officers.  Now,  I 
do  not  care  how  that  is  got  at  in  the  statute,  or  what  the  statute 
says;  that  half  of  the  boards  be  of  one  party  and  half  of  another 
party;  the  fact  remains  that  the  local  authorities  who  may  be  the 
subject  of  election  by  that  very  election  board  control  that  board 


260  REVISED  RECORD.  [Thursday, 

and  control  the  appointments,  and  that  it  is  possible,  and  everybody 
knows  as  a  matter  of  history  that  it  has  occurred,  that  half  of  a 
board  that  is  grudgingly  conceded  to  the  minority  is  liable  to  be, 
and  has  in  the  past  been,  not  strictly  what  it  purports  to  be.  That 
is,  they  do  not  appoint  two  good  Republicans,  if  the  Democrats  are 
in  the  majority,  or  if  the  Republicans  are  in  the  majority,  they  do 
not  appoint  two  good  Democrats  to  represent  the  minority.  They 
appoint  two  that  they  can  use;  two  that  will  be  amenable  to  the 
others  on  the  board;  two  that  will  work  with  them;  two 
that  will  operate  with  them.  There  is  no  way  that  the  people 
can  get  at  of  correcting  it  under  the  existing  circumstances. 
Now,  if  that  system  is  unsatisfactory,  and  I  for  one,  honestly 
and  earnestly  believe  it  is,  how  are  you  going  to  remedy  it?  Sup- 
pose you  give  the  power  to  the  Governor.  Don't  you  meet  with 
the  same  objection,  that  he  is  liable  to  appoint  the  two  of  opposite 
political  faith  from  him  that  will  be  amenable  to  his  dictates,  or  the 
dictates  of  his  party  associates.  It  is  absurd  to  suggest  that  the 
appointment  should  be  vested  in  the  minority  —  in  the  defeated 
candidate  for  Governor.  The  people  of  this  State  have  no  use  for 
defeated  candidates.  They  are  dead  and  gone,  no  matter  by  what 
majority  they  are  defeated,  so  far  as  the  people  are  concerned. 
Now,  where  do  you  propose  to  place  this  power?  Now,  we 
start  out  with  the  assumption,  which  my  distinguished  friend 
of  the  minority  in  this  Convention  makes,  that  the  matter 
of  elections  is  in  State  control.  How  can  anybody  deny  it?  It  is 
supremely  a  matter  of  State  interest.  I  am  just  as  much  interested 
in  the  faithful  casting  and  honest  counting  of  votes  in  the  city  of 
Xew  York  as  any  man  in  this  State.  You  have  got  that  principle, 
then,  to  start  with.  Now,  where  is  the  whole  State  which  is  inter- 
ested in  this  matter  represented,  or  fully  represented?  Is  it  not  in 
the  Legislature?  There  never  will  be  a  time,  probably  never,  in  the 
history  of  this  State,  but  that  there  will  be  in  both  houses  of  the 
Legislature,  a  minority  party  there  represented.  There  ever  and 
always  will  be  a  time  when  the  minority  party  will  not  be  represented 
in  the  mayor.  There  may  be  a  time  when  the  minority  in  the  com- 
mon council  of  a  city  will  be  so  small  that  it  will  have  no  prac- 
tical effect;  but  the  basic  principle  is  that  this  is  a  State  matter. 
Now,  where  are  the  State  officials  selected  by  the  people  of  this 
State  to  have  this  interest?  Who  can  so  well  exercise  the  power 
of  the  selection  of  election  officers  as  in  the  Legislature?  Can  there 
be  any  answer  to  that  proposition?  Is  there  any  man  who  supposes 
rationally  and  reflects  free  in  his  mind  from  any  idea  of  partisan- 
ship, that  that  is  not  just  as  fair  to  one  party  as  to  another,  and  that 


August  9.]  CONSTITUTIONAL  CONVENTION.  261 

it  does  not  lodge  the  power  of  appointment  just  where  it  belongs, 
in  the  State  itself  and  in  the  representatives  of  the  people  of  the 
State?  Does  anybody  suppose  for  a  minute  that  if  my  friends  who 
constitute  the  majority  of  this  Convention  were  given  the  power  of 
appointing  for  the  city  of  New  York,  this  fall,  two  election  commis- 
sioners in  each  district  or  a  board  of  election  commissioners,  who, 
in  turn,  should  select  these  two,  and  the  minority  of  this  Conven- 
tion had  the  right  to  select  the  other  two,  or  the  board  of  election 
commissioners  for  that  city  who  should  select  the  other  two,  through 
whose  medium  that  appointment  should  be  made,  that  they  would 
not  be  perfectly  honest  and  fair  appointments  as  regards  one  side  as 
against  the  other?  Would  not  my  friends  be  particular  and  see  to  it 
that  the  appointees  were  such  that  they  would  watch  faithfully  and 
guard  the  ballot-box  absolutely,  and  safely  and  securely,  and  would 
see  that  the  votes  were  correctly  counted,  and,  on  the  other  hand, 
wouldn't  we,  of  the  majority,  see  to  it  that  our  appointees,  no  mat- 
ter whether  or  not  made  directly  by  ourselves,  or  whether  they  were 
made  through  the  medium  of  a  board  which  we  appointed,  were  the 
very  best  people  that  could  be  selected  for  that  purpose,  who  would 
be  there  attending  to  their  duties  and  watching  the  other  side?  Does 
anybody  question  that  that  thing  would  not  work  practically?  Now, 
we  found,  of  course,  that  the  Senate  and  Assembly  could  not  be 
bothered  with  appointing  all  these  inspectors  throughout  the  State. 
That  would  be  impossible.  There  are  resignations  and. refusals  to 
serve,  so  we  said  we  cannot  give  you  that  power  to  do  it  directly, 
but  you  may  do  it  indirectly,  and  you  may  have  an  election  board,  of 
which  the  minority  shall  nominate  one-half  and  the  majority  the 
other  half,  whether  that  board  be  two  or  four  or  six  men,  it  makes 
no  difference  if  it  is  divisible  by  two,  and  that  board  shall  select  these 
inspectors  throughout  these  great  cities,  and  if  the  other  members 
of  the  Convention  not  coming  from  the  great  cities  desire  to  have 
it  extended  to  the  whole  State,  we  would  be  very  glad  to  have  it  so 
extended.  Now,  when  we  have  got  that  principle  once  there,  always 
conceding  the  proposition  that  you  cannot  make  a  man  good  by  law, 
when  we  have  gone  as  far  as  we  can  go  in  that  direction,  and  pro- 
vided for  this  double  representation  on  these  boards,  each  side  watch- 
ing the  other,  each  side  guarding  the  ballot-box  as  against  the 
other,  each  side  responsible  to  the  central  authority  selected  from 
the  representatives  of  the  State  at  large,  when  you  have  gone  as 
far  as  that,  you  have  taken  a  long  step  towards  securing  honest 
elections.  I  ask  you  if  the  frauds  which  were  perpetrated  at  Qraves- 
end  would  be  possible  under  such  conditions?  I  ask  you  if  the 
frauds  which  were  perpetrated  in  the  fourth  district  of  the  First 


262  REVISED  RECORD.  [Thursday, 

Ward  of  the  city  of  Buffalo,  upon  which  the  Committee  on  Privi- 
leges and  Elections  unseated  delegates  in  this  Convention,  would 
be  possible  under  the  provisions  of  this  measure?  I  say,  while  it 
might  not  be  impossible,  it  would  be  grossly  improbable,  and  this 
is  one  of  the  most  valuable  features  of  this  bill.  Again,  these  com- 
missioners will  have  control  of  the  municipal  elections.  Suppose 
that  a  proposition  is  to  be  submitted  on  the  principle  of  a  referendum 
to  the  people  of  the  city  at  a  general  election,  which  the  politicians 
want  to  beat.  If  they  do  not  control  the  election  machinery  they 
will  have  hard  work  to  beat  it.  If  they  do  control  the  election 
machinery,  we  know  from  the  past  that  they  are  capable  of  beating 
it,  and  have  the  ability  and  means  of  deing  it.  You  can  take  any 
phase  of  this  proposition,  as  applied  to  home  rule,  as  applied  to 
State  interests,  or  the  election  of  city  officers,  or  applied  to  anything 
else  that  concerns  the  government  of  the  whole  State,  and  you 
will  find  there  will  always  be  a  minority  representation  in  the  Senate 
and  Assembly,  coming  direct  from  the  people,  and  so  long  as  there 
always  will  be  a  majority  representation  there,  if  you  vest  them  with 
the  power  of  the  appointment  of  these  commissioners,  or  of  the 
commissioners  that  select  the  election  officers,  you  have  done  a 
very  good  thing,  and  you  have  done  as  much  as  you  can  do  to 
preserve  State  control  of  elections,  and  at  the  same  time  having  a 
responsible  body  in  turn  responsible  to  the  people  who  clothe  them 
with  this  power. 

Now,  I  thank  the  gentlemen  of  the  Convention  for  listening  to  me 
so  patiently.  It  seemed  to  me  that  they  did  not  understand  the 
basic  principle  of  this  amendment,  and  I  hope  I  have  at  least  made 
it  plain,  and  I  hope  I  have  made  it  somewhat  clearer.  I  will  now 
give  way  if  the  gentleman  desires  to  ask  any  questions. 

Mr.  H.  A.  Clark  —  Mr.  Chairman,  I  now  move  that  this  com- 
mittee rise  and  report  progress,  and  ask  leave  to  sit  again. 

Mr.  Hotchkiss  —  Mr.  Chairman,  I  rise  to  a  point  of  order.  The 
gentleman  has  not  finished,  but  has  stated  that  he  will  give  way  for 
any  question. 

Mr.  Becker  —  I  did  not  wish  to  be  discourteous  to  Mr.  Hotchkiss. 
I  wish  him  to  have  full  opportunity  to  ask  anything  he  desires. 

Mr.  Hotchkiss  —  I  would  like  to  ask  of  the  gentleman  whether 
he  is  not  aware  that  the  election  law  so  far  as  it  relates  to  the 
city  of  New  York,  and  as  it  now  exists,  provides  that  all  election 
officers  'shall  be  nominated  by  the  chairman  of  the  general  com- 
mittee of  the  respective  parties,  leaving  to  the  police  department 
simply  the  power  to  appoint  from  the  persons  so  nominated? 


August  p.]  CONSTITUTIONAL   CONVENTION.  263 

Mr.  Becker  —  I  am  aware  of  that  fact.  It  doesn't  change  the 
argument  at  all. 

Mr.  Hotchkiss  —  May  I  ask  the  gentleman  if  he  is  not  content  to 
trust  the  members  of  his  own  party  in  New  York,  selected  in  that 
way  to  act  honestly  at  elections? 

Mr.  Becker  —  I  am  perfectly  willing  to  trust  them. 

Mr.  Hotchkiss  —  Then  why  not  leave  the  law  as  it  is? 

Mr.  Becker  —  Because  I  prefer  to  have  something  that  is  better. 

Mr.  Cassidy  —  Mr.  Chairman,  I  move  you  that  the  committee  do 
now  rise,  report  progress  and  ask  leave  to  sit  again. 

Mr.  A.  H.  Green  —  Mr.  Chairman,  if  the  gentleman  will  with- 
draw his  motion  a  minute,  I  will  say  that  I  am  requested  to  offer  a 
brief  amendment  which  is  merely  to  cover  an  ambiguity,  and  to 
which  I  believe  there  is  no  objection. 

Mr.  Cassidy  —  I  will  give  way  to  Mr.  Green. 

The  Chairman  —  Mr.  Green  offers  an  amendment,  which  will  lie 
upon  the  table. 

Mr.  Cassidy  renewed  his  motion  that  the  committee  rise,  report 
progress  and  ask  leave  to  sit  again. 

The  Chairman  put  the  question  and  it  was  determined  in  the 
affirmative. 

The  President  resumed  the  chair. 
Mr.  Hotchkiss  —  Mr.  President  — 

The  President  —  Nothing  is  in  order  until  we  get  out  of  the  Com- 
mittee of  the  Whole  into  Convention,  when  the  report  of  the 
Committee  of  the  Whole  is  received. 

Chairman  I.  S.  Johnson,  from  the  Committee  of  the  Whole, 
reported  the  action  of  that  committee  on  proposed  constitutional 
amendment  (printed  No.  376),  entitled,  "  Proposed  amendment  to 
provide  home  rule  for  cities." 

The  President  put  the  question  on  agreeing  with  the  report  of 
the  committee  and  granting  leave  to  sit  again,  and  it  was  deter- 
mined in  the  affirmative. 

Mr.  Hotchkiss  —  Mr.  President,  I  move  you,  sir,  that  the  several 
amendments  offered  this  morning  and  the  substitute  to  the  propo- 
sition of  the  Cities  Committee  for  home  rule  be  printed.  I  do  not 
know,  Mr.  President,  whether  there  was  any  amendment  offered. 

The  President  —  There  was  one  offered  by  the  President  of  the 
Convention. 


264  REVISED  RECORD.  [Thursday, 

Mr.  Jesse  Johnson  —  Won't  you  make  it  all  amendments? 

Mr.  Hotchkiss  —  Then  I  will  amend  it  so  as  to  make  it  broad 
enough  to  cover  the  very  valuable  amendment  offered  by  the  Presi- 
dent, and  also  the  substitute  offered  by  myself,  and  also  the  other 
amendments  and  substitutes  of  any  kind  whatever. 

The  President  put  the  question  on  the  motion  of  Mr.  Hotchkiss, 
to  print  all  amendments  and  substitutes  offered  to  general  order 
No.  13,  and  it  was  determined  in  the  affirmative. 

Mr  Francis  —  Mr.  President,  I  move  that  this  subject  be  made 
a  special  order  for  to-morrow  morning  at  1 1  o'clock. 

Mr.  M.  E.  Lewis  —  Mr.  President,  I  move  as  an  amendment  that 
it  be  made  a  special  order  for  to-morrow  morning,  immediately  after 
the  reading  of  the  Journal. 

Mr.  Jesse  Johnson  —  Immediately  after  other  business? 

The  President  —  The  Chair  will  state  that  there  are  always,  after 
three  days,  various  matters  that  ought  to  be  attended  to,  not 
included  in  general  orders  or  special  orders. 

Mr.  Holls  —  Mr.  President,  I  move  as  a  substitute  for  the  motion 
that  this  proposed  amendment  be  placed  at  the  head  of  the  calendar 
of  special  orders  for  to-morrow.  That  will  give  us  a  chance  to  get 
through  with  all  the  other  business  and  then  take  this  up. 

The  President  put  the  question  on  the  substitute  offered  by  Mr. 
Holls,  and  it  was  determined  in  the  affirmative. 

The  President  announced  the  order  of  petitions  and  memorials. 

Mr.  Barhite  presented  a  memorial  from  the  Rochester  Chamber 
of  Commerce  with  reference  to  discrimination  in  express  rates. 
Referred  to  the  Committee  on  Railroads. 

Mr.  Lester  presented  a  petition  from  citizens  of  the  county  of 
Saratoga  with  regard  to  the  manner  of  conducting  primary  meet- 
ings. 

Referred  to  the  Committee  on  Suffrage. 

The  President  announced  the  order  of  motions,  notices  and 
resolutions. 

The  President  announced  the  order  of  standing  committees. 

Mr.  Acker,  from  the  Committee  on  State  Finances  and  Taxation, 
to  which  was  referred  the  proposed  constitutional  amendment  intro- 
duced by  Mr.  Cassidy  (introductory  No.  252),  entitled,  "Proposed 
constitutional  amendment  to  amend  sections  one,  two,  three,  four 
and  five  of  article  seven  of  the  Constitution,  in  relation  to  the  canal 
debt  and  the  maintenance  of  the  canals,"  reported  in  favor  of  the 


August  9.]  CONSTITUTIONAL  CONVENTION.  265 

passage  of  the  same  without  amendment,  and  it  was  committed  to 
the  Committee  of  the  Whole. 

The  President  —  The  Secretary  will  read  the  amendment. 

Mr.  Cochran  —  Mr.  President,  I  understand,  sir,  that  this  amend- 
ment has  been  reported  back  without  any  change  to  the  original 
amendment,  and  it  is  printed,  and  as  the  members  have  all  seen  it, 
I  move  that  the  reading  of  the  amendment  be  dispensed  with  and 
that  it  go  to  the  Committee  of  the  Whole. 

Mr.  Cady  —  Mr.  President,  as  I  understand,  that  is  the  report 
of  the  Committee  on  Finance. 

The  President  —  On  the  proposition  in  reference  to  the  dispo- 
sition of  canal  money. 

Mr.  Cady  —  I  suggest  that  as  an  amendment  precisely  similar 
to  that  is  before  the  Canal  Committee  and  will  be  disposed  of 
shortly,  that  this  amendment  be  laid  on  the  table  until  the  other 
one  is  reported. 

The  President  put  the  question  on  the  motion  of  Mr.  Cochran  to 
dispense  with  the  reading  of  the  amendment  and  it  was  determined 
in  the  affirmative. 

The  President  then  put  the  question  on  the  motion  of  Mr.  Cady,  to 
lay  the  amendment  on  the  table,  until  an  amendment  referring  to 
the  same  subject  in  the  Committee  on  Canals  was  reported,  and 
it  was  determined  in  the  affirmative. 

Mr.  McMillan  offered  a  resolution,  which  the  Secretary  read  as 
follows : 

Resolved,  That  general  order  No.  I  (introductory  No.  73),  be 
recommitted  to  the  Committee  of  the  Whole  for  the  purpose  of 
amending  it  by  adding  after  the  word  "passage,"  in  line  5,  page  i, 
the  following:  "And  the  time  when  said  bill  printed  in  its  final 
form  was  placed  on  the  desks  of  the  members  shall  be  entered  upon 
the  Journal  of  that  day,  so  that  said  proposed  constitutional  amend- 
ment shall  read  as  follows: 

Section  15  of  article  3  is  hereby  amended  to  read  as  follows: 

No  bill  shall  be  passed  or  become  a  law  unless  it  shall  have  been 
printed  and  upon  the  desks  of  the  members  in  its  final  form  at  least 
three  calendar  legislative  days  prior  to  its  final  passage;  and  the 
time  when  said  bill  printed  in  its  final  form  was  placed  upon  the 
desks  of  the  members  shall  be  entered  upon  the  Journal  of  that  day : 
unless  the  Governor,  or  the  acting  Governor,  shall  have  certified  to 
the  necessity  of  its  immediate  passage,  under  his  hand  and  the  seal 
of  the  State,  nor  shall  any  bill  be  passed  or  become  a  law  except  by 


266  REVISED  RECORD.  [Thursday, 

the  assent  of  a  majority  of  the  members  elected  to  each  branch  of 
the  Legislature,  and  upon  the  last  reading  of  a  bill  no  amendment 
thereof  shall  be  allowed,  and  the  question  upon  its  final  passage 
shall  be  taken  immediately  thereafter  and  the  yeas  and  nays 
entered  on  the  Journal. 

Mr.  McMillan  —  Mr.  President,  I  ask  for  the  suspension  of  the 
reading  for  the  purpose  of  making  a  statement  and  making  a 
motion.  Owing  to  the  absence  of  the  delegate  who  has  charge 
of  the  proposed  amendment,  I  desire  to  move  that  the  resolution 
lie  on  the  table  until  Tuesday  next,  and  in  the  meantime  it  be 
printed  and  placed  on  the  Convention  files. 

The  President  put  the  question  on  the  motion  of  Mr.  McMillan, 
and  it  was  determined  in  the  affirmative. 

Mr.  E.  A.  Brown  (for  Mr.  Vedder)  from  the  Committee  on  Legis- 
lative Powers  and  Duties,  to  which  was  referred  the  proposed 
amendment,  introduced  by  Mr.  Barrow  (introductory  No.  81), 
entitled,  "  Proposed  constitutional  amendment  to  amend  section  nine 
of  article  three  of  the  Constitution,  in  regard  to  two-thirds  bills," 
reported  adversely  thereto. 

The  President  —  The  Secretary  will  read  the  proposed 
amendment. 

The  Secretary  read  the  amendment. 

Mr.  Barrow  —  Mr.  President,  I  desire  at  the  appropriate  time 
to  ask  the  Convention  to  disagree  with  this  report,  and  that  it  be 
referred  to  the  Committee  of  the  Whole.  Mr.  Goodelle,  whom  I 
understand  desires  to  oppose  my  motion,  is  not  present  at  this 
moment,  and  I  would,  therefore,  ask  that  the  matter  be  deferred 
until  Tuesday  morning  next. 

Mr.  Dean  —  Mr.  President,  I  move  to  lay  this  upon  the  table. 

The  President  —  Mr.  Barrow's  motion  is  to  postpone  the  con- 
sideration of  this  until  Tuesday  morning.  The  effect  of  that  will 
be  that  it  will  come  up  when  the  same  order  is  reached,  if  it  is 
reached  that  day.  Now,  Mr.  Dean  moves  to  lay  upon  the  table  — 
which  is  it,  Mr.  Dean?  Do  you  move  to  lay  the  motion  upon  the 
table  or  the  amendment? 

Mr.  Dean  —  The  amendment. 

The  President  —  Mr.  Dean  moves  to  lay  it  upon  the  table,  from 
which  it  can  be  taken  at  any  time  by  vote  of  the  Convention. 

The  motion  of  Mr.  Dean  was  lost. 

The  President  —  The  question  is  on  Mr.  Barrow's  motion  to 
postpone  until  Tuesday  next.  The  effect  of  that  will  be,  Mr.  Bar- 


August  9.]  CONSTITUTIONAL  CONVENTION.  267 

• 

row,  that  if  general  orders  shall  consume  all  that  day,  it  will  not 
come  up  until  Wednesday. 

Mr.  Barrow  —  Make  it  Wednesday. 

The  President  put  the  question  on  the  motion  of  Mr.  Barrow, 
that  the  consideration  of  the  report  of  the  Committee  on  Legislative 
Powers  and  Duties  on  his  amendment,  in  reference  to  two-thirds 
bills,  be  made  a  special  order  on  Wednesday,  and  it  was  determined 
in  the  affirmative. 

Mr.  Maybee  —  Mr.  President,  Mr.  Bush,  of  the  Seventeenth  Dis- 
trict, desired  me  to  ask  that  he  be  excused  from  attendance  for 
to-day  and  to-morrow. 

The  President  put  the  question  on  excusing  Mr.  Bush  from 
attendance  to-day  and  to-morrow,  and  it  was  determined  in  the 
affirmative. 

Mr.  Mereness  —  Mr.  President,  I  move  that  the  Convention  do 
now  take  a  recess. 

The  President — Before  the  motion  to  take  a  recess  is  put,  the 
Secretary  will  read  the  notices  of  committee  meetings. 

The  Chair  will  state  that  Mr.  George  B.  Munn  has  been  assigned 
as  clerk  of  the  Select  Committee  on  Forestry. 

Mr.  Davies  asks  to  be  excused  for  to-day  on  account  of  illness, 
and,  if  there  is  no  objection,  he  will  be  so  excused. 

Mr.  I.  Sam  Johnson  —  Mr.  President,  thus  far  in  the  Convention 
I  believe  I  have  not  been  absent  a  single  day  or  a  single  hour, 
except  when  engaged  in  committee  work,  nor  have  I  been  absent 
from  a  meeting  of  any  of  the  committees  to  which  I  have  been 
assigned,  and  I  hoped  to  be  able  to  say  so  until  the  end  of  the  ses- 
sion; but  I  find  an  important  matter,  an  action  in  which  the  public 
of  my  county  is  interested,  and  which  will  occupy  my  time  to-morrow 
and  a  portion  of  next  week  (just  how  much  I  cannot  state),  has  to 
be  attended  to,  and  I,  therefore,  ask  to  be  excused  for  to-morrow 
and  next  week,  or  so  much  of  next  week  as  may  be  necessary. 

The  President  —  How  will  municipal  government  be  carried  on 
in  your  absence? 

Mr.  I.  Sam  Johnson  —  I  am  unable  to  say,  Mr.  President. 

The  President  put  the  question  on  excusing  Mr.  Johnson,  and  it 
was  determined  in  the  affirmative. 

Mr.  Doty  —  Mr.  President,  I  am  engaged  in  the  same  matter  to 
which  Mr.  Johnson  has  referred,  and  I  ask  to  be  excused  from 
attendance  on  Tuesday  of  next  week. 


268  REVISED  RECORD.  [Thursday, 

The  President  put  the  question  on  excusing  Mr.  Doty,  and  it 
was  determined  in  the  affirmative. 

The  President  put  the  question  on  the  motion  to  take  a  recess, 
and  ii  was  determined  in  the  affirmative,  whereupon  the  Conven- 
tion took  a  recess  until  eight  o'clock  this  evening. 


EVENING  SESSION. 
Thursday  Evening,  August  9,  1894. 

The  Constitutional  Convention  of  the  State  of  New  York  met 
in  the  Assembly  Chamber,  in  the  Capitol,  at  Albany,  N.  Y.,  August 
9,  1894,  at  eight  o'clock  P.  M. 

The  President  called  the  Convention  to  order. 

The  President  —  The  special  business  before  the  Convention 
to-night  is  the  further  consideration  of  the  adverse  report  of  the 
Committee  on  Suffrage,  on  Mr.  Tucker's  amendment. 

Mr.  McKinstry  —  Mr.  President,  the  cause  of  woman's  enfran- 
chisement has  already  been  so  ably  presented  in  this  chamber  by 
women,  that  it  seems  like  a  wanton  waste  of  time  for  us  to  renew 
the  argument,  for  we  cannot  improve  upon  the  manner  or  the  mat- 
ter of  the  advocates  who  have  been  before  us.  If  ever  a  disenfran- 
chised class  earned  the  right  to  have  their  political  disabilities 
removed,  these  women  have  earned  it.  Their  symposium  of 
addresses  will  go  into  history,  and  will  become  more  famous  and 
resplendent  each  succeeding  year  as  present  prejudices  melt  away. 
Only  upon  the  ground  that  a  decent  regard  for  the  opinions  of  our 
associates  requires  some  statement  of  the  reasons  for  our  action, 
can  this  debate  be  justified. 

My  vote  is"  ready  to  be  cast  for  any  of  the  propositions  presented 
for  equal  suffrage,  upon  the  plain  principle  of  equitable  right.  I  will 
not  say  natural  right,  because  that  proposition  is  fiercely  disputed, 
but  I  defy  any  man  who  prizes  his  right  to  vote,  to  give  any  good 
reason  why  the  average  intelligent,  conscientious,  law-abiding  and 
taxpaying  woman  has  not  the  same  equitable  right  to  a  voice  in  the 
government  that  he  insists  upon  having  for  himself. 

I  will  not  argue  upon  the  question  of  expediency,  although  there 
is  abundant  argument  at  hand,  founded  upon  experience  and  exist- 
ing conditions;  upon  the  fact  of  woman's  most  wonderful  advance- 
ment during  the  last  fifty  years;  upon  the  fact  of  her  brilliant 
success  in  business  and  professional  life,  in  the  walks  of  art,  science 
and  literature,  in  great  works  of  charity  and  reformation;  also  upon 
the  fact  that  to-day  there  are  more  young  women  receiving  what  is 


August  9.]  CONSTITUTIONAL  CONVENTION.  269 

called  a  liberal  education  than  there  are  young  men  receiving  such 
an  education.  I  repeat,  the  equitable  right  of  every  capable  woman 
in  this  State  to  vote  is  equal  with  our  own  equitable  right  to  vote. 
There  is  not  one  of  the  tenets  of  our  theory  of  government  which 
justifies  your  claim  to  recording  at  the  polls  your  will  as  a  freeman, 
which  does  not  guarantee,  in  theory,  the  right  of  every  free  woman 
to  record  her  will  at  the  polls. 

We  have  a  class  of  American  citizens  in  these  days  who  are  dis- 
posed to  undervalue  their  right  to  vote.  They  have  enjoyed  this 
right  so  freely  that  they  do  not  pause  to  consider  what  it  cost.  They 
forget  the  struggles  of  humanity  since  the  days  of  Magna  Charta 
and  Runnymede,  for  the  right  of  self-government;  they  forget  the 
sufferings,  wounds,  diseases  and  death  our  forefathers  endured  to 
establish  for  us  a  government  without  a  king;  they  are  the  class 
who  are  already  forgetting  the  sacrifices  of  the  brave  Union  soldiers 
to  save  the  government;  but,  notwithstanding  this  indifference  to 
their  blessings,  should  you  pass  an  act  to  disfranchise  them,  their 
protest  would  be  immediate  and  emphatic. 

I  once  saw  a  man's  vote  challenged  at  a  primary  election  on  the 
ground  that,  having  served  a  term  in  State's  prison  without  pardon, 
he  was  not  an  elector.  The  challenge  was  soon  withdrawn  out  of 
pity,  for  the  expression  on  that  man's  face  indicated  that  all  he  had 
suffered  in  wearing  prison  stripes,  in  performing  prison  labor,  and 
enduring  prison  hardships,  were  as  nothing  in  severity  with  the 
penalty  of  having  ceased  to  be  a  voting  citizen  in  this  great  repub- 
lic, having  become,  in  a  sense,  a  man  without  a  country. 

Another  incident  made  an  equally  vivid  impression.  Some  years 
ago  an  eastern  lawyer,  with  more  zeal  than  knowledge,  and  more 
initials  to  his  name  than  the  law  requires,  published  an  elaborate 
opinion  that  under  some  provision  of  our  colonial  charter,  which 
was  never  abrogated,  women  had  still  a  right  to  vote  in  this  State. 
I  saw  a  dozen  ladies  undertake  to  exericse  what  they  had  been 
advised  was  their  right.  The  inspectors,  by  advice  of  counsel, 
refused  to  receive  their  votes,  and  the  ladies  quietly  turned  away. 
While  the  discussion  was  going  on,  an  old  town  pauper  stood  by 
intently  interested  in  the  proceedings.  His  large  family  had  been 
a  charge  upon  the  town  for  years.  These  very  women  had  given 
of  their  time  and  money  to  preserve  that  family  from  cold  and 
starvation;  had  paid  taxes  year  after  year  to  enable  the  poormaster 
to  honor  the  drafts  of  the  old  pauper  to  keep  him  alive  through  the 
winter.  And  yet,  as  those  ladies  sadly  turned  away,  with  their  bal- 
lots still  in  their  hands,  the  face  of  the  besotted  old  brute  was 
wreathed  in  smiles.  He  had  been  declared  their  superior  before 


270  REVISED  RECORD.  [Thursday, 

the  law.  All  their  knowledge,  their  pity,  their  philanthropy,  their 
ardent  patriotism,  went  for  naught  in  the  scale  when  weighed  against 
the  attribute  that  he  was  a  male.  No  depth  of  mental,  moral  or 
physical  degradation  could  disfranchise  him.  No  height  of  learn- 
ing, refinement,  loving  service  to  humanity  or  peril  for  their  country, 
could,  by  any  possibility,  enfranchise  them.  And  when  I  saw  that 
old  wretch  laugh,  and  realized  the  outrageous  injustice  of  the  law, 
I  decided  that  while  I  had  a  voice  and  a  vote,  they  should  be  given 
at  every  opportunity  to  terminate  that  wrong. 

But  I  call  myself  to  order,  Mr.  President,  when  I  recall  that  this 
Convention  is  not  asked  to  confer  the  right  of  suffrage  upon  any- 
body. We  have  no  such  power,  those  miles  of  petitions,  collected  in 
the  Assembly  parlor,  do  not  ask  us  to  change  voting  conditions. 
They  simply  ask  us  to  allow  those  who  already  have  the  franchise 
in  this  State  to  say  whether  they  are  ready  to  do  justice  to  a  great 
class  of  worthy  and  deserving  fellow-citizens  who  have  it  not.  The 
submission  of  no  other  proposition  before  this  Convention  has  been 
prayed  for  by  so  many  people  nor  by  so  many  voters.  Of  the 
nearly  700,000  names  attached  to  these  petitions,  I  am  proud  to 
say  that  12,571  were  signed  in  Chautauqua  county  —  the  county 
where  the  seat  of  the  great  people's  college  is  located,  the  center 
of  the  Chautauqua  Literary  and  Scientific  Circle,  whose  members 
come  from  every  State  and  even  from  foreign  lands  to  find  there 
their  Alma  Mater.  Those  12,571  names  represent  a  population 
as  intelligent,  as  cultivated,  as  advanced  in  all  the  arts  and  refine- 
ments that  glorify  civilization,  as  any  equal  division  of  population 
upon  the  face  of  the  globe.  And  I  am  proud  to  add,  sir,  that  I  was 
informed  by  reliable  canvassers,  who  circulated  these  petitions  in  the 
vicinity  where  I  am  best  acquainted,  that  ninety  per  cent  of  the 
male  voters  solicited  promptly  placed  their  names  upon  the  petition 
and  very  frequently  with  expressions  of  good-will  and  God  speed. 

In  addition  to  these  petitions  is  the  memorial  of  the  State  Grange 
of  the  Order  of  Patrons  of  Husbandry,  an  organization  having 
50,000  members  in  this  State,  the  men  and  women  who  live  upon 
the  farms  and  who  make  the  State  a  vision  of  beauty  to  all  who 
travel  through  its  hills  and  valleys.  This  order  is  the  first  order 
that  ever  placed  its  women  members  upon  an  absolute  equality  with 
the  men  members.  I  regard  their  memorial  as  of  special  signifi- 
cance, because  it  represents  the  conclusions  of  men  after  twenty- 
five  years  of  actual  experience  in  an  order  where  women  freely  hold 
office,  serve  on  committees,  take  part  in  debates  and  vote.  I  am 
proud  of  Chautauqua  county  that  so  many  of  her  citizens  promptly 
signed  in  favor  of  this  request  that  seems  so  fair;  these  women  ask- 


August  9.]  CONSTITUTIONAL  CONVENTION.  271 

ing  that  the  settlement  of  their  right  may  be  submitted,  not  to  a 
jury  of  their  peers,  but  to  a  jury  of  which  no  woman  in  all  this 
great  State  can  be  a  member.  I  wish  delegates  would  consider 
seriously  the  following  suggestions: 

Great  solicitude  has  been  expressed  here,  lest  the  work  of  this 
Convention,  like  that  of  its  predecessor,  should  be  repudiated  at  the 
polls.  It  has  even  been  urged  against  submitting  any  woman's 
suffrage  proposition  that  its  unpopularity  might  weigh  down  the 
other  work  of  the  Convention.  If  some  of  the  propositions  go  in 
that  I  have  heard  urged  here,  the  heavier  load  will  be  in  the  other 
end  of  the  bag.  But,  gentlemen,  there  is  such  a  thing  as  being  too 
conservative.  You  may  submit  a  Constitution  which  will  show 
such  slight  advance,  which  will  excite  so  little  discussion,  that  it 
will  die  of  inanition.  We  heard  from  Mr.  Marshall  recently  of  a 
constitutional  amendment  that  was  voted  upon  by  only  about  ten 
per  cent  of  the  electors  who  voted  that  year,  and  might  easily  have 
been  beaten  by  a  few  interested  parties.  We  have  no  other  issue 
before  us  upon  which  every  voter  in  the  State  has  an  opinion  and 
is  eager  to  express  it.  The  submission  of  a  woman's  suffrage 
amendment,  as  a  separate  proposition,  will  bring  out  the  largest 
constitutional  vote  ever  cast  in  this  State.  It  will  not  only  be  a  full 
vote;  it  will  be  an  intelligent  vote.  It  will  aid  the  political  party 
that  generally  fails  by  reason  of  a  light  vote. 

The  campaign  will  be  short.  Only  six  weeks  intervene  between 
the  limit  of  this  Convention  and  the  date  of  the  grand  assize  in 
November.  Let  us  have  one  question  submitted  that  will  interest 
all  the  people.  Let  us  have  a  square  issue  joined  before  a  full 
jury  —  not  a  jury  of  170  men  in  this  chamber,  but  one  composed 
of  the  great  body  of  electors  in  the  Empire  State.  To  their  verdict 
we  will  most  humbly  bow.  (Applause.) 

Mr.  Blake  —  Mr.  President,  I  shall  occupy  the  time  of  the  Con- 
vention but  for  a  few  moments.  We  find  ourselves,  gentlemen, 
confronted  by  a  great  social  and  political  problem.  It  is  one  that 
must  be  solved  sooner  or  later  by  the  people  of  this  State,  and,  I 
think,  there  is  no  more  propitious  time  than  the  present.  We  are 
met  by  a  question  that  we  must  decide  sooner  or  later  by  the 
agencies  established  by  our  laws,  and  I  ask  you,  why  not  now?  why 
not  now  and  by  the  people  themselves,  who  are  the  source  and 
depositaries  of  all  political  power?  To  those  who  put  their  trust 
in  the  civic  virtue,  the  wisdom  and  the  patriotism  of  the  American 
people,  the  path  of  duty  seems  to  me  plain;  for  these  are  the  reliance 
of  a  free  government.  These  are  the  source  of  inspiration  to  a  free 
people.  They  give  to  free  institutions  their  stability,  their  strength 


272  REVISED  RECORD.  [Thursday, 

and  the  hope  of  perpetuity.  For  the  correction  of  every  abuse  and 
defect,  whether  of  administration  or  of  government,  for  the  wise 
determination  of  all  proposals  to  amend  the  Constitution,  that  work 
a  wide  and  radical  change  in  our  laws  and  our  system,  prudence 
and  wisdom  and  patriotism  alike  dictate  that  resort  should  be  had 
to  the  fountain  head  and  spring  of  all  political  power,  namely,  the 
people  themselves.  In  that  course  alone  is  there  wisdom,  in  that 
course  safety.  I  care  not  how  complex  the  problem  may  be,  nor 
how  momentous  the  question,  the  people  will  know  how  to  solve  the 
one  and  decide  the  other.  If  they  are  incapable  of  that  responsi- 
bility and  duty,  then  are  they  incapable  of  self-government?  In 
grave  emergencies,  when  new  and  untried  experiments  are 
attempted,  when  after  a  century  of  trial  our  system  of  suffrage  is 
sought  to  be  changed  by  the  introduction  of  what  I  confess  to  be  a 
novel  and  startling  experiment,  but  which  is  asked  for  by  hundreds 
of  thousands  of  people,  citizens  of  this  State,  who,  unless  it  be  the 
people,  shall  be  made  the  arbiters  and  the  final  judges  of  the  issue? 

Gentlemen,  for  half  a  century  now  this  question  has  thrust  itself 
into  the  forefront  of  political  ethics  and  problems.  It  has  been  dur- 
ing that  time  a  live  and  burning  question,  sometimes  overshadowed 
by  other  and  important  issues  temporarily,  but  always  retaining  no 
inconsiderable  vitality,  and,  if  the  truth  must  be  told,  developing 
with  the  passing  years  and  increasing  in  strength.  If  you  shall 
refuse  to  send  this  question  to  the  people,  what  will  you  have 
gained?  What  will  you  have  accomplished?  You  will  simply  have 
postponed  the  inevitable.  The  cause  will  feed  and  grow  upon  its 
very  resentments  and  disappointments.  Behind  this  act  of  indis- 
cretion and  unwisdom  upon  your  part  will  remain  distrust,  discon- 
tent, dissatisfaction,  and,  above  all,  gentlemen,  the  reproach  that 
you  dare  not  trust  the  people  who  are  your  masters  and  of  whom 
you  are  but  the  servants.  You  will  have  but  smothered  the  fires. 
You  will  not  have  extinguished  them,  and  they  will  break  out  afresh 
each  year  and  a  few  years  hence,  perhaps,  because  of  this  act  of 
folly  on  your  part,  will  burst  into  a  consuming  conflagration  that 
shall  sweep  over  this  State,  destroying  all  opposition,  invincible  and 
irresistible. 

Do  not  misunderstand  me,  gentlemen.  I  am  not  in  favor  of  the 
principle  of  woman  suffrage,  although  I  must  confess  that  I  am  not 
so  strongly  opposed  to  it  as  I  was.  It  is  a  conviction  born  not  to-day 
nor  yesterday;  but,  whatever  my  convictions  were,  they  were  the 
product  of  deliberate  thought  and  study;  they  were  conclusions 
reached  by  conscientious  effort  to  find  for  myself,  at  least,  a  just 
and  correct  verdict.  I  may  be  mistaken;  God  knows  who  is  right 


August  9.]  CONSTITUTIONAL  CONVENTION.  273 

and  who  is  wrong;  but  with  the  light  that  He  has  given  me,  with 
my  poor,  limited  faculties,  I  have  been  unable  to  reach  any  other 
conclusion.  But  no  matter  about  that.  The  exigencies  of  this 
case,  and  of  the  situation,  and  the  question  in  the  shape  in  which 
it  comes  before  this  Convention,  do  not  require  that  I  should  dis- 
cuss that  question.  No  matter  what  may  be  my  opinion  or  your 
opinion.  However  curious  and  interesting  it  may  be,  that  is  not 
the  question;  but  the  real,  live,  burning  question  is,  and  it  is  a  ques- 
tion that  must  needs  be  answered,  if  you  would  remove  it  from  the 
realm  of  doubt  and, speculation,  what  do  the  people  of  the  State 
of  New  York  think  of  this  proposition?  Not  what  shall  be  the 
deliverance  of  170  gentlemen  or  thereabouts,  who,  after  they  shall 
have  completed  their  labors  here,  represent  170  votes,  no  more  and 
no  less;  but  what  is  the  calm,  cool,  august  judgment  of  more  than 
a  million  of  voters,  this  magnificent  electorate  of  this  great  com- 
monwealth of  ours?  That,  sir,  is  the  issue,  as  I  conceive  it  to  be. 
That  is  the  issue,  and  no  decision  by  any  body  less  potential,  or  by 
any  tribunal  of  a  character  inferior  to  the  Supreme  Court  of  the 
people,  can  answer  that  question  or  eliminate  the  doubt. 

Now,  gentlemen,  is  there  a  man  here  who  doubts  that  this  ques- 
tion overshadows  all  other  questions  calculated  to  engage  the  atten- 
tion of  this  Convention  —  any  doubt  that  it,  of  all  others,  occupies 
the  public  mind  to-day,  and  that  none  other  is  so  universally  dis- 
cussed in  the  home  circle,  by  the  fireside,  in  every  walk  of  life,  by 
society,  by  the  pulpit  and  the  press?  And  is  this  the  question, 
gentlemen,  that  you  are  going  to  determine  here  and  now?  Is  this 
the  question  that  this  Convention  proposes  to  determine  and  to 
decide  for  itself?  If  there  be  one  question  more  than  another  upon 
which  I  fancied  that  I  was  irrevocably  resolved  when  I  came  here, 
it  was  to  give  my  voice  and  my  vote  to  the  determination  and 
decision  of  this  question  by  the  Convention,  and  I  was  fully  prepared 
to  take  the  responsibility  of  that  act.  That  was  my  determination 
then.  I  had  strong  convictions,  and  I  thought  abiding  convictions. 
On  the  main  question  they  are  mostly  with  me  yet.  They  have 
undergone  very  little  change;  but  I  have  seen  voluminous  petitions 
come  in  here  from  every  quarter  of  the  State,  from  every 
county  in  the  State,  signed  by  thousands  and  hundreds 
of  thousands  of  our  citizens,  showered  upon  this  Convention. 
Never,  I  venture  to  say,  from  the  foundation  of  our  govern- 
ment until  now,  in  any  legislative  body  or  in  any  Convention, 
has  the  eye  of  man  witnessed  a  similar  spectacle.  And  what- 
ever may  be  said  of  the  cause,  gentlemen,  I  say  the  exhibition  that 
18 


274  REVISED  RECORD.  [Thursday, 

repeated  itself  here  day  after  day  for  weeks  was  something  magnifi- 
cent. It  was  sublime.  A  vast  number  of  citizens  came  here 
knocking  at  our  doors.  Some  gentleman,  I  think  it  was  Mr.  Titus, 
stated  the  number  at  seven  hundred  thousand.  But  whatever  the 
number  may  be,  it  was  a  fair  and  goodly  army.  They  came  here, 
and  with  one  voice  and  one  prayer  they  said  to  us  few  gentlemen 
assembled  here:  "Gentlemen,  don't  you,  we  pray'  you,  determine 
this  question.  Let  us  go  to  the  sovereign  people.  Don't  you  stand 
between,  that  is  all  we  ask.  Do  we  ask  too  much?"  My  con- 
science and  my  judgment  say  no.  With  the  responsibility  of  the 
oath  which  I  have  taken  here  and  with  the  full  sense  of  my  duty 
pressing  hard  upon  me,  I  say  that  your  demand  is  fair  and  just; 
and  so  far  as  my  voice  and  my  vote  may  assist  in  this  work  of  jus- 
tice, they  are  yours  now  and  they  are  yours  forever.  (Applause.) 

It  has  been  our  privilege  to  listen  to  these  ladies  who  argued 
for  their  sex  with  so  much  ability;  and  I  think  we  are  all  agreed 
that  they  presented  their  case  with  rare  tact  and  intelligence.  I  have 
no  prepossession  nor  prejudice,  either  for  or  against  the  lady  cham- 
pions on  either  side,  but  still  I  am  constrained  to  declare  it  as  my 
judgment  that  for  intelligence,  for  singleness  of  purpose  and  high 
honor,  for  every  trait  that  can  adorn  and  dignify  grand  and  noble 
womanhood,  these  ladies  who  have  appeared  here  and  presented 
their  case  with  so  much  eloquence  and  ability  are  —  I  will  not  say 
the  superiors,  but  I  do  say  in  every  essential  particular  —  the  peers 
and  equals  of  the  noblest  and  best  of  their  sex.  Some  of  them, 
perhaps,  are  of  stronger  mold  and  cast  than  their  weaker  sisters,  and 
I  know  it  is  the  fashion  to  call  such  "  strong-minded  women." 
Well,  sir,  without  admitting  the  correctness  of  that  position,  I  do 
not  forget  that  it  is  the  strong-minded  of  either  sex  that  stands 
always  in  the  van  of  human  progress,  for  the  uplifting  and  for  the 
betterment  of  the  human  race.  I  have  seen  one  such  here,  in  form 
and  face  venerable.  Time,  whose  ravages  no  spell  nor  art  can  stay, 
has  yet  dealt  kindly  and  gently  with  her.  With  her  three  score 
and  ten  upon  her,  like  some  aged  oak  of  the  forest,  she  still  stands 
proudly  erect,  unharmed  and  unbent  by  the  fury  of  life's  storms 
and  tempests;  and  yet  we  see  the  frosts  and  snows  of  winter  are 
fast  gathering  about  her  brow.  Her  sun  of  life  speeds  swiftly  to 
the  west,  and  not  far  distant  she  may  find  her  last  resting  place,  her 
last  home,  where  the  silent  majority  await  her.  And  to  you,  gentle- 
men of  a  political  faith  differing  from  mine,  her  name,  her  history, 
should  be  a  most  sweet  and  precious  memory.  Some  surely  there 
must  be  among  you  to-night  who  can  recall  days  when  the  voice 
of  Su?an  B.  Anthony  (applause),  coming  like  the  voice  of  inspiration 


August  9.]  CONSTITUTIONAL  CONVENTION.  275 

and  prophecy,  rang  out,  nay,  flamed  across  the  continent,  from  the 
Atlantic  away  to  the  Golden  Gate,  setting  myriads  of  hearts  afire 
for  her  cause.  She  was  then  one  of  a  despised  band.  On  the  moral 
side  of  the  question  the  sympathies  of  all  good  men  went  out  to  her. 
But  your  party  and  mine  clung  to  the  Constitution,  because  that 
was  a  great  constitutional  question;  but  she  and  her  little  band 
stood  outside  the  ramparts,  outside  the  Constitution,  stood  for 
humanity.  It  is  Lowell,  I  think,  who  said: 

He  is  a  slave  who  dare  not  be 

In  the  right  with  two  or  three. 

She  was  in  the  right.  The  God  of  battles,  our  common  Father 
who  loves  all  His  creatures,  whether  white  or  black,  of  whatever 
race  or  creed,  blessed  her  cause.  And  is  it  not  best  so,  gentlemen? 
And  now  she  comes  here  and  she  prays  you,  and  her  heart  and  soul 
are  in  the  prayer,  to  let  her  appeal  to  the  jury  of  the  people.  She 
appeals  to  you,  who  belong  to  the  party  of  Lincoln  and  Grant,  of 
Sevvard  and  Chase  and  Sumner  (applause),  a  party  that  I  confess 
has  done  much  for  the  cause  of  humanity,  and  in  other  days  never 
hesitated  to  make  its  appeal  to  the  people,  and  I  trust  will  not  now. 
She  appeals  to  you  to  do  this  act  of  justice  to  her,  to  the  cause  she 
represents,  and  to  the  six  or  seven  hundred  thousand  people  that 
come  here  knocking  at  our  doors. 

Does  she  ask  too  much,  gentlemen?  Why,  methinks,  if  she 
stood  alone,  she  would  not  be  unheard  by  you.  Will  you  stand 
between  and  say:  "  No,  no,  you  shall  not  reach  the  people."  I,  know 
not  what  may  actuate  you,  gentlemen,  but  I  think  it  would  not  be 
republican,  it  would  be  most  unjust,  it  would  be  in  contraven- 
tion of  the  principles  that  underlie  popular  government,  and  it 
would  expose  you  and  all  of  us  to  the  charge  now  heard  in  murmurs, 
but  then  to  be  thundered  through  the  State,  that  we  dared  not  trust 
this  cause  to  the  popular  verdict.  And  to  you,  my  fellow-Democrats, 
you  of  the  Democratic  fold,  you  who  subscribe  to  the  immortal 
principles  of  Jefferson,  the  chief  of  which  was  a  sacred  regard  for 
the  rights  of  the  people;  you  who  still  cherish  the  memory  of  Jack- 
son, Douglass,  Marcy  and  Tilden;  you  who  belong  to  a  party  that 
sprang  from  the  plain  people,  which  has  always  jealously  defended 
and  guarded  the  right  of  the  people  to  be  heard  upon  all  great 
questions  that  concern  their  vital  interests;  will  you  deny  the  people 
the  right  to  decide  this  great  question?  Do  you  think  it  is  the 
better  course?  Do  you  think  it  the  wiser  course?  Do  you  think 
that  you  can  so  check  this  movement  and  scatter  its  forces?  If  that 
thought  be  in  your  minds,  I  tell  you  you  woefully  mistake,  you  will 
most  miserably  fail,  because,  stung  by  a  sense  of  wrong  and  injustice, 


276  REVISED  RECORD.  [Thursday, 

this  cause  will  take  on  new  life  and  impetus;  it  will  gain  fresh 
strength;  it  will  gain  accessions  from  all  people  whose  sympathies  go 
out  to  those  whose  reasonable  and  just  demands  have  been  denied. 
Remember,  gentlemen,  that  this  is  no  ordinary  case;  it  is  a  very 
extraordinary  case,  and  it  is  not  to  be  judged  by  ordinary  rules. 

I  admit,  gentlemen,  that  upon  the  ordinary  proposal  to  amend 
the  Constitution  you  would  have  the  right  to  constitute  yourselves 
a  court  of  last  resort.  I  cannot  foretell  what  propositions,  one  or 
more,  you  may  submit  to  the  people  for  their  decision;  I  think  you 
will  submit  one  or  more  others;  but  tell  me,  is  there  one  here,  is 
there  a  single  proposal  before  this  body  that  has  behind  it  the 
prayer  of  so  many  people,  that  has  behind  it  the  sympathy  and 
support  which  are  behind  this  movement? 

And  to  whom  do  these  ladies  ask  that  the  appeal  shall  be  made? 
To  a  new  and  untried  tribunal?  No,  sir,  but  to  the  same  puissant 
court  to  which  the  appeal  has  ever  been  made  from  the  foundation 
of  our  republic,  to  the  sober,  intelligent  and  incorruptible  electorate 
of  this  great  State,  upon  whose  shoulders,  in  part,  rest  "the  free 
institutions  and  this  admirable  system  of  government  of  ours. 
Again,  I  ask  you,  to  whom  do  they  make  the  appeal?  To  your 
sex,  to  your  own  sex.  And,  if  the  electors  of  this  State  are,  indeed, 
opposed  to  woman  suffrage,  why  do  you  hesitate,  why  do  you  fear 
to  intrust  them  with  the  decision  of  the  issue?  What  have  you  to 
fear?  Let  us  act  the  part  of  men,  let  us  be  just  and  fear  not.  You 
have  it  in  your  hands  to  decide  this  question  here  and  now  I  admit, 
and  you  may  turn  a  deaf  ear  to  that  mighty  voice  that  is  sweeping 
down  upon  you  and  thundering  here  at  our  doors  to  be  heard ;  you 
may  interpose  your  veto,  if  you  will,  but  are  you  sure  that  your  acts 
will  meet  the  approval  of  your  conscience  and  judgment?  I  have 
heard  it  rumored  and  whispered  about  that  no  man  has  a  right  to 
vote  for  submission  to  the  people  who  is  opposed  to  the  principle 
of  woman  suffrage.  That  contention,  gentlemen,  is  not  worthy 
the  name  of  argument.  From  the  foundation  of  our  government 
it  has  always  been  the  custom  of  legislative  bodies  and  conven- 
tions to  hearken  to  the  voice  of  the  people,  to  bend  to  the  popular 
will.  What  do  you  want  the  Senate  in  Washington  and  the  House 
of  Representatives  to  do  now?  I  recall  a  time,  and  it  is  only  one  of 
hundreds  of  instances,  when  a  great  Senator  from  the  West,  George 
Pugh,  I  think,  of  Ohio,  from  his  seat  in  the  Senate  made  an  admir- 
able speech. against  the  majority,  and  then,  after  having  made  his 
speech,  voted  for  the  measure,  because  he  was  so  instructed  by  the 
Legislature  of  his  State.  Do  you  tell  me  that  if  the  people  of  this 
State  came  here  now  in  vast  numbers  with  their  petitions,  asking 


August  9.]  CONSTITUTIONAL  CONVENTION.  277 

that  the  gubernatorial  term  he  extended  to  four  years,  that,  for- 
sooth, because  we  believe  it  ought  to  remain  where  it  is,  you  would 
shut  your  ears  to  that  voice,  to  the  overwhelming  demand  of  the 
people?  Why  this  argument  scarcely  deserves  and  is  scarcely 
worthy  of  an  answer. 

Now,  Mr.  President,  I  have  only  intended  to  say  a  very  few  words 
upon  this  question,  but  I  want  to  say  this,  that  if  the  people  shall 
be  permitted  to  make  the  decision,  whatever  that  decision  may  be, 
all  will  be  well.  Every  interest  will  be  satisfied.  No  one  will  have 
the  right  to  murmur,  not  these  ladies,  not  you  nor  I.  The  people 
will  not  complain  because  we  submit  the  question  to  their  judgment 
and  decision.  All  will  bow  to  the  judgment  of  the  free  people  of 
this  goodly  State,  as  to  the  voice  of  God  Himself;  for,  gentlemen, 
the  voice  of  the  free  people,  so  expressed,  is  the  voice  of  God. 
(Applause.) 

Mr.  Maybee  —  Mr.  President,  I  do  not  intend  to  enter  into  any 
discussion  that  involves  the  question  of  woman  suffrage.  It  is  a 
question  upon  which  men  have  the  right  to  differ.  I  have  the 
right,  and  every  delegate  in  this  Convention  has  the  right  to  his 
individual  opinion.  But  whatever  may  be  said  on  the  question  of 
woman  suffrage,  it  can  hardly  be  denied  that  it  is  the  most  important 
question  that  is  before  this  Convention  for  its  consideration  and 
determination.  It  was  said  that  where  McGregor  sat  was  the  head 
of  the  table;  and  when  the  woman  suffrage  question  appears,  all 
minor  questions  retire  to  the  background,  unnoticed  and  forgotten. 
It  is  a  question,  too,  that  demands  settlement  and  solution.  It  will 
not  be  stifled,  it  will  not  be  suppressed;  like  Banquo's  ghost,  it,  will 
not  down.  You  might  as  well  attempt  to  smother  the  volcanic  fires 
of  Aetna  as  to  try  to  keep  this  question  from  settlement  and  solu- 
tion by  the  American  people  at  some  time  or  other.  Whether  \\e 
settle  the  question  here  and  now  or  not,  whether  in  the  year  1894  the 
great  State  of  New  York  shall  attempt  the  solution  of  this  ques- 
tion, so  far  as  its  citizens  are  concerned,  or  not,  the  time  will  come 
when,  as  the  great  world  spins  down  the  ringing  grooves  of  change, 
as  Tennyson  puts  it,  women  will  have  the  ballot  and  exercise  it 
upon  equal  terms,  and  as  freely  as  her  brother  does  at  the  polls. 

Mr.  President,  the  question  and  the  only  question  which  we  are 
to  determine  is  simply  this ;  shall  the  male  voters  of  the  State  of  New 
York,  under  existing  conditions,  at  the  general  election  in  the  fall 
of  1894,  decide  the  question  whether  or  not  at  the  general  election 
in  the  next  succeeding  year  the  question  of  the  right  of  women  to 
vote  shall  be  submitted  to  the  male  voters  of  the  State?  We  are 
not  asked  to  pass  upon  the  merits  of  the  question  of  woman  suffrage. 


278  REVISED  RECORD.  [Thursday, 

We  are  not  even  asked  to  refer  this  question  to  the  people;  we  are 
simply  asked  to  give  the  people  themselves  an  opportunity  at  a 
general  election  to  say  whether  the  question  shall  be  referred  at  a 
subsequent  election.  Petitions  have  come  up  to  this  Convention 
signed  by  some  five  or  six  hundred  thousand  names  —  the  exact 
number  is  not  material.  It  is  a  fact  which  no  one  can  dispute  that 
a  large  proportion  of  the  people  of  this  State  have  asked  us,  in  the 
most  solemn  and  deliberate  manner  possible,  to  submit  this  question 
to  a  vote.  We  are  here  as  the  representatives  of  the  people.  Dare 
we  deny  the  prayer  of  this  petition,  the  equal  of  which  was  never 
presented  to  any  representative  body?  Dare  we  ignore  the  petition 
of  six  hundred  thousand  of  our  fellow-citizens  who  ask  us  to  submit 
this  burning,  this  important,  this  paramount  question  to  solution 
and  settlement  by  the  voters  of  this  State?  For  my  part  I  think  we 
should  be  derelict  to  our  duties,  false  to  our  trust,  unworthy  the 
confidence  of  the  people,  if  we  rejected  the  prayer  of  these  petitions, 
if  we  refused  to  allow  the  sovereign  people  to  say  whether  or  not 
this  question  shall  be  settled  for  the  next  twenty-five  years.  It  is 
certainly  an  important  question,  one  of  the  most  important  ques- 
tions that  can  be  considered,  affecting  the  right  of  enfranchisement 
of  half  the  adult  population  of  the  State,  a  population  intelligent, 
able  to  exercise  the  right  of  the  elective  franchise,  who  have  been 
educated  up  to  the  high  demands  of  the  age  and  the  century.  Why 
not  submit  the  question  to  the  people  whether  or  not  that  class  of 
citizens,  the  women  of  the  State,  shall  have  the  right  to  vote? 
I  believe  the  question  ought  to  be  submitted.  I  believe  the  time 
and  occasion  demand  its  submission,  and  I  shall  give  my  vote,  now 
that  the  initiative  has  been  completed,  the  petitions  have  come  up 
here,  in  favor  of  the  great  referendum  to  the  people  of  this  import- 
ant and  mighty  question.  (Applause.) 

Mr.  Cornwell  —  Mr.  President,  I  will  promise  not  to  overtask  the 
patience  of  the  Convention  by  extended  remarks  or  discussion  of 
the  merits  of  the  subject  under  consideration,  as  it  has  been  very 
fully  considered  in  all  its  bearings  by  the  able  gentlemen  who  have 
preceded  me.  The  principles  of  suffrage  in  this  country,  although 
slow  of  growth,  like  the  giant  oak  of  the  forest,  have  yet  assumed 
such  proportions  that  they  have  been  almost  universally  adopted, 
so  far  as  the  male  population  is  concerned ;  their  roots  are  imbedded 
in  the  hearts  of  the  people  and  are  deeply  grounded  among  the 
foundation  stones  of  the  Republic.  It  is  safe  to  say  that  they  give 
life  and  strength  and  vitality,  not  only  to  the  great  principles  of  uni- 
versal citizenship,  but  also  strengthen  the  bulwarks  of  the  State. 
To  my  mind  the  next  step  in  the  right  direction  is  to  adopt  and 


August  9.]  CONSTITUTIONAL   CONVENTION.  279 

carry  out  the  principles  of  equal  suffrage  in  its  entirety,  applying 
its  provisions  to  women,  as  well  as  to  men.  It  would  seem,  to  a 
casual  observer,  as  exhibited  by  the  action  of  the  Suffrage  Com- 
mittee of  this  Convention,  that  the  growth  of  sentiment  of  granting 
the  franchise  to  women  on  the  public  mind  had  been  slow,  and 
its  fulfillment  very  remote  —  yet  I  sincerely  believe  it  cannot  be 
long  delayed,  is  sure  to  come  —  and  when  it  does  come  and  is  a 
fixed  fact,  .the  wonder  will  be  that  the  franchise  was  ever  given  to 
men  and  denied  to  women. 

Mr.  President,  I  have  the  honor,  in  part,  to  represent  in  this  Con- 
vention the  Twenty-sixth  Senatorial  District  of  this  State,  composed 
of  the  counties  of  Cayuga,  Ontario,  Tompkins,  Wayne  and  Yates. 
There  have  been  presented  to  this  Convention  petitions  from  these 
several  counties  numbering  9,925  males  and  15,657  females,  total, 
25,657  persons,  of  twenty-one  years  of  age  and  upwards  —  asking 
that  the  word  male  be  stricken  from  article  2,  section  I  of  the 
Constitution,  and  thus  secure  to  the  women  of  the  State  the  right 
to  vote  on  equal  terms  with  men.  It  will  not  be  questioned  that 
the  right  of  petition  is  an  inherent  right  guaranteed  to  every  citizen 
of  the  broad  land.  These  petitioners  represent,  so  far  as  I  know 
and  believe,  the  most  enlightened  and  cultured  class  of  citizens  of 
this  section  of  the  State.  I  feel,  Mr.  President,  that  I  would  be 
recreant  to  my  trust,  recreant  to  my  duties  as  a  delegate  of  this 
Convention,  if  I  did  not  make  some  effort  to  carry  out  the  wishes 
of  my  constituents  in  this  regard,  provided  there  were  no  insur- 
mountable objections  to  their  requests.  I  have  no  doubt  that  the 
hundreds  of  thousands  of  other  petitions  from  all  portions  of  this 
State,  presented  to  this  Convention  on  the  same  subject,  also  repre- 
sent the  best  and  most  patriotic  elements  of  the  several  communities 
from  which  they  came.  These  petitions  show  and  prove  that  there 
is  a  very  deep  and  widespread  feeling  among  the  people  on  this 
subject,  which,  to  my  mind,  should  be  respected  by  this  Conven- 
tion. The  proposition  is  a  very  simple  one,  and  it  seems  to  me 
should  be  acquiesced  in  by  every  reasonable  man. 

It  will  not  be  claimed  that  women  are  not  as  well  qualified  to 
vote  as  men;  neither  will  it  be  urged  that  they  are  not  as  greatly 
interested  in  the  affairs  of  government,  in  the  making  and  adminis- 
tration of  the  laws,  in  the  general  welfare  of  the  people,  in  all  that 
goes  to  make  up  good  government  "  by  the  people  and  for  the  peo- 
ple," neither  will  it  be  urged  that  they  do  not  form  a  part  of  the  citi- 
zenship of  this  great  State,  entitled  to  all  its  privileges,  except, 
perhaps,  to  vote.  The  question  arises,  what  reason  can  be  given 
for  this  state  of  things?  The  answer  comes,  none  whatever,  except 


280  REVISED  RECORD.  [Thursday, 

custom  and  prejudice.  If  it  were  fashionable  for  women  to  vote, 
they  would  all  vote,  as  a  matter  of  course.  In  times  past  there 
may  have  been  some  good  reasons  why  women  should  not  share 
with  men  in  public  affairs.  The  past  few  years  have  demonstrated 
that  women  are  capable  of  going  to  the  front  in  all  matters  that 
pertain  to  business.  They  are  outstripping  men  in  many  of  the 
avocations  of  life,  and  men,  in  place  of  being  jealous  of  woman, 
should  be  willing  to  extend  to  her  a  helping  hand,  and  more  than 
willing  to  extend  to  her  the  privileges  of  the  ballot,  if  by  that  means 
she  might  be  enabled  to  improve  her  condition. 

Gentlemen,  to  my  mind  this  is  a  matter  above  expediency,  above 
policy,  above  politics,  above  every  consideration,  except  the  matter 
of  right.  If  we  believe  that  the  giving  of  the  ballot  to  women 
is  right,  which  no  one  will  deny,  then  it  should  be  done.  If  we 
believe  it  would  improve  her  condition,  better  enable  her  to  take 
care  of  herself,  better  prepare  her  to  cope  with  man  and  with  the 
world,  then,  by  all  means,  she  should  have  it.  It  will  not  be  denied, 
and  the  history  of  the  past  will  show,  that  woman  has  been  the 
slave  of  man;  her  condition  has  improved  only  step  by  step.  The 
time  has  come  for  woman  to  take  her  place  by  the  side  of  man,  his 
equal  before  God  and  the  world,  his  equal  before  the  law. 

Mr.  President,  although  this  subject  has  been  dwelt  upon  largely 
by  speakers,  both  in  and  out  of  this  Convention,  and  I  deemed  it 
almost  superfluous  to  add  anything  to  what  had  already  been  said, 
I  felt  that  I  would  not  be  doing  my  whole  duty  to  the  25,000  citizens 
of  the  district  I,  in  part,  represent,  whose  petitions  are  now  on  file 
in  this  Convention  in  favor  of  these  great  principles,  did  I  not  raise 
my  voice  openly  in  favor  of  this  righteous  proposition.  I  sincerely 
hope  and  trust  the  adverse  report  of  the  committee  will  not  prevail. 
(Applause.) 

Mr.  Powell  —  Mr.  President,  the  position  in  which  I  find  myself 
placed  by  the  subject  before  this  Convention  is  somewhat  peculiar. 
Personally  I  am  in  favor  of  granting  the  right  of  suffrage  to  the 
gentler,  the  more  patient  and  the  more  loyal  sex,  and,  yet,  if  that 
question  were  before  this  Convention  to-night  for  final  determina- 
tion by  our  vote,  I  should  cast  my  vote  in  opposition  to  what  is 
known  as  female  suffrage.  I  should  do  this  because  it  is  my  belief 
that  the  majority  of  my  constituents  are  opposed  to  granting  the 
right  of  suffrage  to  women;  and  I  believe  that  under  circumstances 
such  as  that  it  would  be  my  duty  to  humbly  subordinate  my  personal 
judgment  to  the  judgment  of  those  whom  it  is  my  privilege  to  repre- 
sent in  this  body.  I  can  readily  conceive,  sir,  of  circumstances 
where  I  might  deem  it  my  duty  to  vote  in  direct  opposition  to  the 


August  9.]          '  CONSTITUTIONAL  CONVENTION.  281 

sentiment  of  those  whom  I  represent,  or  a  majority  of  them.  If  the 
question  under  consideration  were  complex,  if  it  were  one  that 
required  peculiar  investigation  and  I  had  made  that  investigation, 
if  I  was  convinced  that  my  judgment  was  superior  to  that  of  those 
who  sent  me  here,  then  1  should  exalt  my  judgment  above  theirs, 
and  vote  according  to  my  own  sentiments  and  not  according  to  those 
of  my  own  constituents.  But  this,  sir,  is  a  simple  question,  as  con- 
crete as  a  question  can  possibly  be,  and,  therefore,  I  should  deem 
it  my  duty,  under  the  circumstances  to  which  I  have  just  referred, 
to  vote  according  to  the  wishes  of  my  constituents  as  I  have  been 
best  able  to  determine  them. 

But,  gentlemen,  the  question  before  this  Convention,  as  has 
already  been  well  suggested  by  the  gentleman  from  New  York 
(Mr.  Blake),  is  not  the  question  of  female  suffrage.  The  sole  ques- 
tion is  whether  or  not  this  Convention  has  the  courage,  whether 
it  has  sufficient  confidence  in  the  common  people  to  submit  this 
question  to  them,  for  their  determination.  Why,  sir,  should  we  not 
submit  it  to  the  great  common  people  of  the  Empire  State?  It  has 
not  been  suggested,  neither  will  it  be  suggested,  methinks,  by  any- 
one who  shall  oppose  this  measure,  that  this  question  is  not  of 
sufficient  importance  to  merit  his  attention.  What  mean  these 
six  hundred  thousand  petitioners  who  have  come  here  and  knocked 
at  the  door  of  this  Convention,  demanding  the  right  to  hear  the 
voice  of  the  people  of  this  great  State  upon  this  matter?  What 
mean  these  long  weeks  of  consideration  and  deliberation,  during 
which  our  Committee  on  Suffrage',  so  patient,  so  gentle,  so  kind,  so 
illogical  in  their  ultimate  conclusion;  these  long  weeks  during  which 
they  have  been  grappling  with  this  Titanic  problem?  What  mean 
these  public  sessions  of  that  committee,  when  this  room  has  been 
packed  in  its  every  path  until  standing  room  could  no  longer  be 
secured?  And  these  occasions,  when  this  committee  has  met 
together  by  itself,  and  summoning  up  all  of  its  genius  and  all  of  its 
intellectuality  and  all  of  its  logic,  has  fixed  and  concentrated  its 
every  mental  faculty  upon  this  question  of  woman  suffrage.  In  the 
face  of  all  these  facts,  if  this  Convention,  by  its  final  conclusion, 
were  to  proclaim  that  this  matter  is  not  of  sufficient  importance  to 
go  to  the  common  people,  it  would  stultify,  and  grossly  stultify  itself. 

It  has  been,  however,  suggested  by  some  members  of  this  Con- 
vention that  we  have  no  right  to  submit  to  the  people  any  question, 
unless  we  voice  our  own  opinions  upon  it;  that  is,  unless  we  recom- 
mend it.  That  is,  undoubtedly,  true,  gentlemen  of  the  Convention, 
to  a  certain  extent.  It  is  certainly  true  with  two  classes  of  problems ; 
those  which  are  extremely  intricate,  and  also  those  which  require 


282  REVISED  RECORD.  [Thursday. 

special  knowledge,  which  must  be  derived  from  careful  investiga- 
tion. Take,  for  example,  the  report  which  will  soon  be  submitted 
to  us  by  the  Judiciary  Committee,  one  which  will  deal  with  all  our 
courts,  from  the  highest  down  to  the  very  lowest,  one  which  will 
deal  with  our  methods  of  legal  procedure,  one  which  will  define  the 
rights  of  juries  and  judges,  matters  which  we  have  no  right  to  sub- 
mit to  the  people,  unless  we  recommend  that  which  we  submit. 
As  an  illustration  of  the  second  class,  take  the  report  which  will  soon 
be  submitted  by  the  Committee  on  Charities.  That  committee, 
under  the  lead  of  its  most  efficient  chairman,  the  gentleman  from 
New  York  (Mr.  Lauterbach)  (applause)  —  I  am  glad  to  see  that  the 
appreciation  of  him  extends  beyond  the  narrow  confines  of  our 
committee  room  —  that  committee,  under  his  leadership,  has 
traveled  all  over  this  State,  from  New  York  to  Buffalo,  investigating 
our  charitable  institutions.  And  with  the  knowledge  derived  from 
that  investigation,  as  it  will  be  laid  before  this  Convention,  the 
Convention  has  no  right  to  submit  any  proposition  to  the  people, 
unless  it  believes  that  it  is  for  the  advantage  of  the  people  to 
adopt  it. 

But  here  is  a  question  distinct  and  simple,  the  ability  to  pass 
upon  which  depends  only  upon  the  intelligence  of  those  who  act, 
and  their  ability  to  form  a  right  judgment.  And  for  this  Convention 
to  say  that  it  is  not  right  to  submit  such  a  question  without  express- 
ing an  opinion  is  simply  to  stultify  itself.  It  is  an  act  of  the 
extremest  egotism.  It  is  the  assumption  on  the  part  of  this  Con- 
vention that  it  knows  more  about  this  question,  which  has  nothing 
peculiar  about  it  and  which  requires  no  special  investigation,  than 
all  the  rest  of  the  citizens  of  the  State  combined.  Then,  gentle- 
men, as  I  have  come  in  contact  with  the  members  of  this  Convention, 
I  have  discovered  that  there  are  some  belonging  to  the  majority, 
like  myself,  who  find  themselves  suffering  from  a  dread  fear  that,  if 
we  submit  this  matter  in  any  form  to  the  people,  we  shall  ruin  the 
rest  of  our  Constitution.  They  recognize,  as  I  recognize,  that  there 
is  a  peculiar  .responsibility  resting  upon  the  political  party  which  is 
in  the  majority  in  this  Convention.  It  is  this,  while  you  who  belong 
to  the  minority  are  individually  responsible  to  constituents,  we, 
who  belong  to  the  majority,  are  not  only  individually  responsible 
to  ours,  but,  in  addition  to  that,  there  is  a  party  responsibility,  the 
responsibility  of  the  Republican  party,  which  the  people  of  the  State 
of  New  York  has  placed  in  power  in  this  Convention.  It  has  even 
been  suggested  to  me  by  a  gentleman  who  is  prominent  in  the 
councils  of  the  majority,  that  if  we  submit  this  matter  to  the  people 
in  any  form,  it  will  lead  to  a  sort  of  opera-bouffe  campaign.  Now, 


August  9.]  CONSTITUTIONAL   CONVENTION.  283 

that  rather  startled  me.  I  know  what  opera-bouffe  is.  I  have  been 
there.  It  is  suggestive  of  blazing  lights,  somewhat  scanty  attire, 
and  a  good  deal  of  jolly  merriment.  I  have  been  through  political 
compaigns  and  I  know  what  they  are.  But  when  you  take  the  two 
words  "  opera  bouffe,"  make  a  compound  adjective,  and  hitch  them 
on  to  the  word  "  campaign,"  I  confess  that  you  have  created  some- 
thing of  which  it  is  rather  difficult  for  my  mind  to  conceive.  But 
I  took  this  problem,  as  it  was  presented  to  me,  and  grappled  with  it. 
Esteeming  the  intelligence  of  the  gentleman  who  used  the  expres- 
sion, and  knowing  that  his  words  are  ordinarily  very  wisely  chosen, 
I  deemed  it  my  duty  to  ascertain,  if  possible,  what  an  opera-bouffe 
campaign  was  like,  so  I  started  out  and  thought  of  all  the  political 
campaigns  that  had  ever  occurred  in  this  country.  I  went  back- 
ward, step  by  step,  along  the  line  of  the  years,  and  at  last,  in  the 
first  political  campaign  of  which  I  have  any  recollection,  it  seemed 
to  me  that  I  found  a  regular  genuine  opera-bouffe  political  cam- 
paign. And,  gentlemen,  to  my  astonishment,  I  found  that  it  was 
that  opera-bouffe  political  campaign  which  lifted  Abraham  Lincoln 
to  the  presidency  of  the  United  States.  (Applause.)  If  you 
are  inclined  to  discredit  my  word,  go  back  and  read  the 
story  of  that  campaign  over  again.  Examine  the  illustrated  papers, 
see  the  coarsely  brutal  semi-humorous  caricatures  of  that  great  and 
noble  man.  See  the  references  that  were  made  to  him  as  some  kind 
of  a  degraded  animal.  Read  again  the  allusions  to  his  rough  face, 
his  long  arms,  his  lanky  limbs;  in  all  that  you  have  an  opera-bouffe 
campaign. 

Gentlemen,  if  all  the  opera-bouffe  campaigns  of  history  would 
only  give  us  results  which  will  half  realize  those  obtained  in  that 
campaign,  then,  I  say,  let  us  have  an  opera-bouffe  campaign  in 
every  year  of  the  history  of  this  commonwealth.  And,  if  the  cam- 
paign which  shall  occur,  if  this  question  be  submitted  to  the  people, 
will  only  produce  one-tenth  part  of  the  magnificent  results  of  that 
campaign,  then  let  us  determine  to  submit  this  question  as  soon  as 
possible.  . 

It  has  also  been  suggested  by  gentlemen  who  are  prominent 
in  the  majority  that  this  campaign  will  lead  to  undue  excitement. 
Is  not  that  marvelous?  Too  much  excitement!  Gentlemen,  has 
our  statesmanship  been  reduced  to  a  careful  utilization  of  chloroform 
and  ether  and  opium  pills?  Is  there  anything  to  fear  from  whole- 
some excitement  in  a  republic?  I  say  no.  Give  us  all  the  excite- 
ment you  can,  so  long  as  it  be  of  a  wholesome  character, 
so  long  as  it  relates  to  questions  of  right  and  of  wrong.  I 
believe  if  you  submit  this  question  to  the  people  —  I  know  that 


284  REVISED  RECORD.  [Thursday, 

we  shall  have  abundance  of  excitement  —  I  believe  that  if  you  will 
submit  it  to  the  people,  its  intelligent  discussion  of  the  right  and 
wrong  of  those  great  principles  which  lie  at  the  foundation  of  repub- 
lican institutions  will  act  upon  the  people  of  the  Empire  State  as  a 
moral  and  political  tonic,  and  the  sooner,  we  give  it  to  them  the 
better. 

Some  of  our  friends  also  are  anxious  to  have  a  calm,  placid,  peace- 
ful, summer-like,  non-tempestuous  campaign  when  they  set  their 
little  constitutional  boat  upon  the  waves  of  the  great  ocean  of  public 
opinion,  started  out  to  meet  its  destiny;  some  of  our  friends  are 
afraid  that  this  excitement  will  divert  the  attention  of  the  people 
from  the  weightier  matters  which  they  will  propose.  In  the  first 
place,  that  is  all  wrong.  In  other  words,  their  theory  is  that  the 
best  way  to  interest  people  in  the  Constitution  is  to  keep  them  as 
far  away  from  the  Constitution  as  possible.  Their  theory  is  that  if 
you  set  people  to  discussing  constitutional  questions,  they  will  at 
once  cease  to  have  any  interest  in  the  Constitution  at  all.  I  submit, 
sir,  that  the  very  moment  you  arouse  interest  in  one  part  of  the 
matter  thus  proposed  in  connection  with  the  work  of  this  Conven- 
tion, you  arouse  interest  in  every  other  part.  Let  these  women 
go  about  and  stir  up  the  community.  They  will  lead  men  to  think 
of  the  Constitution,  who  have  never  thought  of  it  before,  and  who 
would  not  think  of  it  in  this  coming  campaign,  were  it  not  for  them. 
And  with  this  one  feature  of  constitutional  law  brought  to  their 
attention,  they  will  read  the  Constitution,  they  will  examine  the  pro- 
posed amendments,  and  we  will  not  only  have  the  largest  vote,  but 
we  will  have  the  most  intelligent  vote  that  was  ever  cast  upon  such 
matters  in  the  State  of  New  York.  (Applause.) 

I  want  to  use  an  illustration.  We  had  an  election  in  the  city 
of  Brooklyn  last  fall;  it  was  the  most  heated  election  that  we  have 
ever  had  over  local  municipal  affairs.  Now,  I  can  imagine  some 
of  these  gentlemen,  who  are  so  afraid  that  the  attention  of  the  people 
may  be  diverted  from  something,  coming  over  to  us  in  the  city  of 
Brooklyn  in  the  heat  of  our  campaign  about  our  mayoralty,  and  a 
dozen  other  matters  that  refer  to  the  city  government,  saying: 
"  Now,  you  fellows  just  keep  cool.  You  don't  want  to  say  a  word 
about  the  city  of  Brooklyn  in  this  campaign.  You  must  not  say 
a  word  about  its  government;  you  must  not  refer  to  the  question 
of  who  shall  be  its  mayor  or  raise  any  questions  about  it,  because 
the  very  moment  you  do  that  you  will  divert  the  attention  of  the 
people  from  other  matters."  Did  it  divert  the  attention  of  the  peo- 
ple? Go  read  the  record  of  the  election  that  fall  and  you  will  find 
that  all  the  municipal  excitement  simply  aroused  the  people  upon 


August  9.]  CONSTITUTIONAL   CONVENTION.  285 

other  matters  and  brought  out  the  grandest  vote  that  the  city  of 
Brooklyn  has  ever  given  in  her  whole  history.  So  will  it  be  with 
this  matter,  if  you  will  submit  it  to  the  people. 

No,  no,  gentlemen,  that  is  not  it.  You  are  afraid,  as  my  friend, 
Mr.  Blake,  from  New  York,  suggested,  you  are  afraid  of  the 
people.  Record  it  here  by  your  votes,  and  then  go  back  and  blush 
when  you  meet  your  constituents.  Afraid  of  the  common  people? 
Shades  of  Lincoln,  and  of  Sumner,  and  of  Seward;  the  great  Repub- 
lican party  ashamed  and  afraid  of  the  common  people! 

Gentlemen,  I  decline  to  subscribe  to  any  theory  which  casts  the 
slightest  slur  upon  the  integrity,  aye,  the  infallibility  of  the  people 
of  the  State  of  New  York.  I  am  not  afraid  of  them.  I  proclaim 
my  absolute  trust  in  the  common  people,  and  unlimited  and  unflinch- 
ing faith  in  their  intelligence  and  in  the  integrity  of  their  judgment. 
And  because  I  believe  in  the  common  people,  because  I  trust  the 
common  people,  I  shall  vote  to  submit  this  matter  to  their  deter- 
mination, and  vote  against  our  deciding  it  here.  (Applause.) 

Mr.  Platzek  —  Mr.  President,  I  rise  to  support  the  report  of  the 
committee.  It  requires  considerable  courage.  Last  night,  when 
I  heard  my  eloquent  and  very  good  friend,  Lauterbach,  I  had  fears 
upon  the  question  of  how  I  would  cast  my  vote.  I  was  under  the 
spell  of  his  eloquence.  But  I  have  slept,  and  I  have  done  a  day's 
work  in  this  Convention,  and  my  mind  has  been  cleared  again. 
And,  notwithstanding  the  sweet  influences  that  surround  us,  I  will 
still  express  my  views  against  the  right  of  woman  to  vote.  Last 
night  I  was  impressed  with  the  halo  of  glory  that  Mr.  Lauterbach 
threw  around  and  about  the  oath  that  he  took  when  he  entered  this 
Convention,  and  I  was  very  much  reminded  of  myself  when  I  have 
stood  before  a  jury  defending  some  man  for  a  heinous  offense,  when 
I  tried  to  frighten  them  into  an  observance  of  the  great  responsibili- 
ties of  duty  when  (hey  sat  upon  their  oaths  in  the  jury-box. 

Now,  there  is  a  secondary  proposition  which  has  become  primary, 
that  of  the  referendum.  I  am  not  afraid  of  the  people,  neither  am  I 
afraid  to  go  back  to  my  own  district  and  face  my  constituents  again 
if  I  have  discharged  my  duty  here  like  a  man,  even  though  some 
of  them  may  disagree  with  me.  If  I  did  other  than  that,  I  would  be 
unfit  to  serve  them,  and  I  should  be  ashamed  of  my  American 
citizenship. 

Now,  this  is  no  new  question.  Ever  since  1867  woman  suffrage 
has  been  a  live  issue,  not  alone  in  the  State  of  New  York,  but 
throughout  these  great  United  States.  On  the  platform,  in  the  pul- 
pit, in  political  campaigns,  in  every  legislative  hall,  this  question 
has  been  discussed  learnedly  and  eloquently.  Long  before  I 


286  REVISED  RECORD.  [Thursday, 

accepted  my  nomination  as  a  representative  in  this  body  the  ladies 
of  New  York  were  heard  in  the  press  and  in  the  drawing-room; 
and  after  my  nomination  I  was  deluged  with  correspondence  and 
inquiries  as  to  how  I  would  vote  upon  this  question,  because  many 
votes  might  depend  upon  it;  and  whenever  I  was  interrogated  I 
said :  "  I  will  answer  that  question  on  my  oath  in  the  Convention." 
And  I  am  here  to-night  to  do  it.  And  I  am  going  to  tell  them  that 
I  intend  to  vote  against  woman  suffrage. 

Now,  as  to  the  fear  of  the  people.  I  say  that  this  question,  being 
familiar  to  every  man  and  woman  that  can  read  and  write,  every 
person  that  voted  for  me  on  election  day,  knew  that  this  was  the 
live  issue  that  would  be  presented  in  this  Convention,  and  I  was 
made  one  of  175  referees  to  come  here  and  to  determine  that  propo- 
sition upon  my  oath  and  my  conscience;  and  I  say  to  you,  gentlemen, 
especially  those  of  the  bar,  that  when  you  are  appointed  as  referee 
by  a  court  of  proper  jurisdiction,  and  you  accept  your  fee  to  dis- 
charge your  duties,  it  is  cowardly,  with  the  fee  in  your  pocket,  to  go 
back  to  your  client  and  say,  I  have  got  your  money  in  my  pocket, 
but  you  must  decide  your  case  for  yourself,  otherwise  I  may  not  get 
another  fee  from  somebody  else.  That  is  the  question  on  the  refer- 
endum. The  proper,  courageous,  manly  act  to  do  is  to  rise  up  and 
discharge  your  duty,  not  for  the  sake  of  being  retained  for  some 
other  office,  but  it  is  right  to  do  what  you  were  sent  here  to  do. 
And  I  say  to  you  that  you  were  not  sent  to  this  Convention  for  the 
purpose  of  wasting  the  time  of  the  people,  taking  their  money, 
arguing  important  questions,  and  then  say:  "This  is  important;  I 
am  against  the  proposition,  but,  nevertheless,  in  order  to  satisfy 
both  sides  I  will  announce  myself  as  opposed  to  the  question,  and 
send  it  back  to  the  people  that  sent  me  here,  and  shift  the  responsi- 
bility upon  their  shoulders,  because  I  have  not  the  courage  of  my 
convictions  to  do  what  I  was  sent  here  to  do."  And  that  is  all  that 
I  shall  say  upon  this  question  of  referendum. 

Now,  I  hardly  know  whether  it  is  at  all  necessary  to  discuss  the 
main  proposition.  I  assume  that  all  of  you,  like  myself,  in  the 
conscientious  discharge  of  your  duty,  have  read  all  the  literature 
that  has  been  handed  to  you  relating  to  this  question.  I  will  say, 
in  all  honesty  and  earnestness,  that  I  have,  and  I  have  been  very 
much  interested.  I  have  done  more;  I  have  listened  to  every  word 
that  came  from  the  lips  of  the  ladies  who  addressed  the  committee 
upon  this  question.  I  was  never  absent.  I  was  an  attentive 
listener.  I  was  an  admiring  listener.  I  am  not  here  to  say  ought, 
except  in  praise,  of  woman.  I  listened,  as  you  did,  enchanted  and 
charmed  by  the  women  that  came  here  to  enlighten  us.  Many  of 


August  Q.J  CONSTITUTIONAL   CONVENTION.  287 

them  have  grown  gray  in  the  service  of  womanhood,  every  silver 
hair  in  their  heads  being  a  decoration  of  honor  for  the  principle 
they  fought  for,  and  the  conscientious  manner  in  which  they  dis- 
charged that  duty,  and  I  honored  and  admired  them  for  it.  They 
have  done  more;  many  of  them  have  been  in  this  Assembly  Chamber 
as  frequently  as  I  have  been,  regular  daily  attendants,  aye,  even 
at  the  evening  sessions.  I  say  that  these  ladies  sacrificed  their 
homes,  their  husbands,  their  brothers,  their  sisters,  their  sweet- 
hearts and  their  children,  in  the  conscientious  endeavor  to  show  their 
earnestness  of  purpose,  and  their  desire  to  achieve  the  object  they 
had  in  view. 

But,  notwithstanding  all  that,  they  do  not  represent  all  the 
women.  There  are  a  few  ladies  even  within  the  State  of  New 
York,  who  are  not  here  in  person,  nor  by  petition,  clamoring  or 
asking  for  the  right  to  vote.  And  the  assumption  is  a  reasonable 
one,  that  those  who  are  not  here  by  petition  or  in  person  have  no 
desire  to  knock  at  the  doors  of  this  chamber  and  ask  for  the  privilege 
to  vote.  I  may  be  asked,  why  should  women  not  be  allowed  to  vote; 
and  I  would  answer,  first,  that  no  woman  that  was  near  or  dear  to 
me  would  I  want  to  hear  of  having  gone  to  the  polls  over  in  New 
Jersey,  at  an  election  where  the  ladies  voted  and  participated  in  the 
unseemly  wrangle  that  took  place  there,  resulting  in  some  violence. 
I  say  that  we  men  who  really  admire  woman  for  her  worth,  for  her 
sweetness,  for  the  gentle  influence  that  she  brings  into  the  home 
circle,  will  stand  here  battling  against  her  right  to  cast  the  vote 
and  to  participate  with  us  at  the  polls  on  election  day.  Why,  sir, 
there  is  a  proposition  now  before  us,  urged  with  a  great  deal  of 
force,  to  compel  the  educated  voter  to  come  to  the  polls.  Sir,  the 
so-called  refined  American  citizen  finds  it  so  obnoxious  to  come  to 
the  polls  that  it  has  been  deemed  necesary  to  introdce  a  law  here  to 
compel  that  man  to  come  to  the  polls,  or  find  some  way  of  punish- 
ing him  for  a  failure  so  to  do.  And  it  seems  to  me  that  when  men 
fear  to  go  to  the  polls,  women  ought  not  to  go. 

Now,  I  have  another  very  serious  objection,  and  that  is,  if  we 
grant  suffrage  it  must  be  universal.  We  are  now  suffering  in  every 
State  in  this  Union  from  the  evil  effects  of  a  pauper  and  ignorant 
vote.  These  men  have  that  vote,  and  no  Constitutional  Convention 
nor  the  citizens  of  any  State  will  ever  be  able  to  take  that  vote  away 
from  them  except  by  a  revolution.  Now,  if  we  allow  the  women  to 
vote  —  and  we  have  the  figures  here  from  the  ladies  themselves 
claiming  seventeen  or  eighteen  thousand  more  women  voters  in 
this  State  than  men  —  I  say  we  double  that  evil,  and  we  endanger 
the  stability  and  safety  of  the  State.  Now,  will  the  advocate  of 


288  REVISED  RECORD.  [Thursday, 

women  suffrage  say :  "  Well,  then  affix  a  qualification  to  our  right  to 
vote;  make  it  intellectual,  or  property,  if  you  please."  I  say  that  the 
man  who  would  do  that  would  degrade  woman,  because  if  the 
colored  voter  in  the  south  or  the  ignorant  voter  in  the  north  with- 
out property  has  a  right  to  vote,  why  should  we  ask  intelligent 
women,  possessed  of  property,  to  have  that  qualification,  and  unless 
that  qualification  should  be  made  then  the  suffrage  would  be  uni- 
versal and  this  ignorant  vote,  if  you  please,  this  pauper  vote,  if  you 
please,  would  be  doubled  and  the  State  would  be  at  the  mercy,  not 
of  its  best,  but  probably  of  its  worst  citizens. 

Again,  the  argument  is  continually  heard,  taxation  without  repre- 
sentation. .  I  know  of  no  weaker  argument.  Paying  taxes  has 
nothing  to  do  with  voting.  There  are  millions  of  people  that  vote 
that  never  pay  one  dollar  of  taxes.  A  tax  is  not  imposed  to  vote; 
taxes  are  paid  for  protection  to  life  and  limb  and  property,  and  for 
no  other  purpose.  And  if  there  are  women  possessed  of  large 
means,  and  they  pay  taxes,  they  only  do  what  men  do  who  possess 
property. 

And  then  again,  if  woman  received  the  right  to  vote  she  must  take 
upon  herself  and  assume  all  the  duties  of  citizenship.  I  am  not 
going  to  argue  the  question  of  force,  the  ballot  and  the  bullet.  I  do 
not  want  her  to  carry  the  gun  and  fire  the  bullet,  and  I  hope  that  she 
does  not  want  the  ballot,  or  if  she  does,  that  she  will  never  receive 
it.  I  will  not  argue  the  question  of  physical  force  and  power,  but 
I  will  say  this :  If  you  enfranchise  the  woman  she  must  assume  many 
of  the  duties  of  citizenship.  She  will  be  entitled  to  every  office  in 
the  gift  of  the  people.  We  will  see  her  sweet  face  and  refining  influ- 
ence on  the  bench  in  our  Supreme  Court,  or  occupying  a  chair  when 
the  next  Constitutional  Convention  meets,  and  probably  as  satisfac- 
torily, sir,  as  you  or  I  could  discharge  that  duty.  (Applause.)  But 
the  time  is  not  yet  ripe.  We  must  hold  on  to  the  reins  of  govern- 
ment, not  for  our  own  sake  but  to  protect  woman  against  herself. 

I  have  spoken  at  greater  length  than  I  intended.  In  conclusion,  I 
will  take  the  liberty  of  calling  attention  to  something  that  I  heard 
and  with  which  I  disagreed  at  the  time.  It  came  from  the  lips  of  a 
very  distinguished  and  admirable  lady  who  spoke  here.  She  told 
us,  in  answer  to  an  inquiry,  I  think,  of  our  distinguished  friend, 
Mr.  Bigelow,  how  she  explained  it  that  so  many  women  were 
arrayed  against  woman  upon  this  question.  I  thought  the  answer 
was  uncharitable,  because  it  was  that  they  were  like  the  slaves ;  they 
were  subjected  to  the  influences  of  their  husbands;  they  were 
dependent  beings,  and  that  those  who  are  dependent  must  obey 
and  cannot  assert  themselves.  Therefore,  the  ballot  was  to  lift  them 


August  9.]  CONSTITUTIONAL  CONVENTION.  289 

from  this  condition  of  dependence  to  one  of  independence.  And 
you  will  remember  how  graphically  the  lady  illustrated  the  argument 
by  reciting  an  anecdote  of  the  colored  man  on  the  farm  of  Henry 
Clay.  Now,  I  say  that  that  is  not  the  condition  of  woman,  whether 
she  has  the  ballot  or  not,  or  whether  she  asks  for  the  ballot  or  not. 
It  is  a  mere  difference  of  opinion  between  one  class  of  women  who 
say :  "  We  do  not  want  the  ballot,"  and  another  class  who  say  that 
they  desire  it,  but  I  say  that  an  American  woman  is  and  always  has 
been  and  always  will  be  free,  and  it  is  an  insult  to  American  women 
to  designate  any  class  of  them,  because  they  differ  one  with  the 
other,  as  slaves. 

Another  thing  I  heard  which  impressed  me  very  astonishingly, 
and  that  was  a  statement  as  to  an  occurrence  of  a  minister  in  Troy, 
and  the  visit  of  a  lady  to  the  Governor  of  this  State  to  inform  him 
thereof.*  Well  that  certainly  was  a  most  womanly  act,  to  first  tell 
the  Governor  and  then  come  here  and  inform  us.  But  there  is  a 
moral  in  that  story  which  impressed  me  differently  than  it  did 
many  of  you,  probably,  and  I  want  to  set  it  forth  here.  The  lady 
said  that  the  minister  from  Troy,  after  the  election  troubles,  called 
upon  the  Governor;  that  he  gave  him  a  deaf  ear;  that  shortly  there- 
after a  distinguished  Senator  who  lives  in  that  same  city,  called  upon 
the  Governor,  and  he  was  properly  received,  and  nothing  was  done. 
Then  this  good  lady  met  the  minister  and  he  inquired  of  her  why 
was  it  that  the  Governor  did  not  give  him  a  hearing,  and  she, 
familiar  with  the  power  of  the  ballot,  told  him  that  he  had  no  voters 
behind  him ;  that  no  one  but  women  were  in  his  church,  and,  there- 
fore, the  Governor  did  not  heed  his  voice. 

Now,  I  say  that  that  calls  to  my  mind  a  danger,  a  menace  to  our 
free  institutions.  Let  the  minister  preach  from  the  pulpit.  Let  him 
administer  to  my  soul  and  to  my  spirit,  but  in  the  name  of  God  do 
not  again  drag  the  pulpit  into  politics.  Do  not  join  church  and 
State  when  we  are  here  trying  to  separate  them.  I  say  it  with  all 
becoming  respect  to  every  man  that  wears  the  cloth  and  preaches 
from  the  pulpit,  because  I  admire  them  in  their  place,  I  tell  you  that 
that  would  be  one  of  the  greatest  dangers  that  we  would  have  to 
confront.  Leave  these  men  in  the  pulpit.  They  are  good  ministers, 
useful  in  their  calling.  Do  not  take  a  useful  minister  from  the 
pulpit  and  make  of  him  a  very  poor  politician. 

Mr.  President,  there  are  others  that  ought  to  speak,  and  I  have 
no  doubt  will.  Before  taking  my  seat  I  desire  merely  to  re-empha- 
size the  fact  that  no  man  in  the  hearing  of  my  voice,  holding  his 
place  by  the  vote  of  the  people,  and  who  is  here  upon  his  constitu- 
19 


290  REVISED  RECORD.  [Thursday, 

tional  oath,  should  be  afraid  to  cast  his  vote  in  favor  of  this  adverse 
report;  and  I  appeal  to  you  not  to  be  carried  away  by  the  argu- 
ment that  it  is  not  a  vote  in  favor  of  sending  the  matter  to  the 
Committee  of  the  Whole,  and  then,  possibly,  to  the  people  for  their 
final  determination.  We  have  been  sent  here  to  decide  this  question, 
and  if  you  believe  that  woman  is  entitled  to  vote,  then  strike  the 
word  "  male "  from  the  Constitution  here  and  now,  but  do  not 
shift  a  responsibility  from  your  shoulders  and  throw  it  upon  the 
shoulders  and  upon  the  consciences  of  the  people  that  sent  you  here. 
(Applause.) 

Mr.  C.  A.  Fuller  —  Mr.  President,  I  have,  upon  this  question, 
endeavored  to  divest  my  mind  of  its  prejudices  and  consider  the 
matter  upon  its  merits,  and  to  foresee  the  actual  workings  of  the 
so-called  reform;  I  have  read  the  speech  of  Curtis  in  '67,  listened 
to  the  arguments  and  pleadings  of  Miss  Anthony,  Mrs.  Blake  and 
Mrs.  Jacobi  and  the  other  bright  and  charming  speakers  for  woman 
suffrage.  Last  night  I  was  not  indifferent  to  the  power  and  bril- 
liancy of  the  effort  of  the  very  able  advocate  of  the  cause,  and  still  I 
must  confess  that  I  do  not  believe  in  the  movement ;  I  think  that  its 
adoption  in  this  State  at  this  time,  or  before  the  organization  of  the 
next  Constitutional  Convention,  would  be  a  serious  blunder;  I 
know  the  face  value,  the  ostensible  magnitude  of  the  prayers  of 
men  and  women  for  the  proposed  change  that  would  make  New 
York  the  pioneer  among  the  great  States  permitting  general  female 
suffrage.  By  request,  I  presented  the  Chenango  county  contingent 
of  petitions.  While  I  did  not  examine  the  matter  within  the  covers, 
I  presume  that  the  footings  were  correct,  and  that  subscribed  to  the 
heading  of  the  petition  there  are  some  3,000  names,  about  equally 
divided  between  males  and  females.  While  petitions  are  not  to  be 
wholly  ignored,  and  sometimes  imply  much,  every  delegate  to  this 
Convention  knows  how  easy  it  is  to  procure  names  to  a  list  once 
started,  in  particular  if  it  is  presented  by  a  pretty  woman.  I  will 
not  assume  to  characterize  the  quality  of  the  petitions  from  other 
counties,  but  so  far  as  Chenango  county  is  concerned,  from  per- 
sonal knowledge,  I  make  bold  to  say  that  it  would  convey  a  wrong 
impression  to  assume  that  the  number  and  the  names  appearing 
represent  the  sober,  deliberate,  intelligent  desires  of  all  of  the 
people  there  recorded.  It  has  come  to  my  knowledge,  from  the 
admission  of  the  signers  themselves,  that  many  persons  whose 
names  are  upon  that  petition  do  not  desire  to  have  the  question  even 
submitted  to  the  people.  In  reply  to  my  inquiry  why  they  allowed 
their  names  to  falsely  sustain  the  momentous  question,  the  reply 
has  been  that  it  was  the  quickest  and  cheapest  way  to  get  rid  of  iho 


August  9.]  CONSTITUTIONAL  CONVENTION.  291 

canvasser  for  names.  In  my  own  town  I  know  of  names  to  the 
petition,  where  the  signers  regretted  their  act,  and  wished  it  had 
been  upon  the  petition  against. 

It  is  my  judgment  that  the  number  of  women  in  most  localities 
who  really  want  the  ballot  is  exceedingly  small.  The  ballot,  once 
granted,  could  not  be  confined  to  the  Anthonys,  Willards,  Blakes 
and  Jacobis.  In  self-defense  it  would  drag  the  overwhelming 
majority  of  women,  who  protest  against  the  imposition  of  this  new 
duty,  away  from  their  homes  and  business,  into  the  caucus,  the 
convention  and  to  the  polls.  To  extend  the  franchise  as  demanded 
would,  in  the  great  centres  of  population,  where  now  the  chief 
menace  to  the  purity  and  integrity  of  elections  exists,  add  a  large 
contingent  to  the  absolutely  corrupt  and  purchaseable  vote.  I  shall 
be  apprehensive  of  the  day  when  in  these  cities  all  sorts  and  condi- 
tions of  women,  over  twenty-one  years  of  age,  may  go  to  the  polls 
and  help  determine  the  personnel  of  the  city  government.  The  bal- 
lot, in  my  judgment,  would  not  advantage  the  worthy  women.  As 
it  is,  in  every  good  way,  their  interests  have  been  and  are  cared  for, 
advanced  and  promoted.  All  avocations  are  open  to  them  (except 
as  policemen  and  soldiers).  As  to  property  interests,  they  stand 
equal,  or  with  special  advantages  in  their  favor.  They  are  not  dif- 
ferently taxed.  Men  are,  as  a  rule,  in  their  conduct  towards 
women,  fair,  generous,  courteous,  chivalrous.  They  will  fight  for 
and  protect  them;  they  revere,  honor  and  love  them;  they  regard 
them  in  their  special  spheres  as  their  equals  or  superiors.  It  would 
tend  to  change  this  benign  condition  and  adjustment  for  women 
into  the  fierce,  bitter  fight  of  political  contest;  quarter  would  not  be 
asked  or  given;  once  arrayed  on  this  or  that  side  of  the  fighting 
line,  the  women  would  hurrah  with  the  victors  and  wear  their 
share  of  the  scalps  of  the  enemy  taken  in  battle,  or  they  would  abide 
in  the  camp  of  the  defeated,  crushed  and  disconsolate. 

This  experience  would  not  promote  the  development  of  that 
which  makes  women  most  lovable  and  influential.  Now  she  has  a 
mighty  power  in  shaping  men  and  measures.  It  is  my  deliberate 
judgment,  good  for  what  it  may  be  worth,  that  voting  would  not 
enhance  the  power,  best  influence  or  happiness  of  a  woman,  but, 
on  the  contrary,  would  vex,  harm  and  oppress  her.  As  I  would 
vote  against  the  proposition  in  Committee  of  the  Whole,  I  believe  it 
proper  to  attempt  to  defeat  the  measure  here  and  now. 

Mr.  Cassidy  —  Mr.  President,  I  have  no  desire  to  entertain  or 
dazzle  this  Convention  with  sentences  braided  out  of  sunshine,  or  to 
play  hide  and  seek  with  its  honor,  as  did  my  friend,  Platzek,  who 


292  REVISED  RECORD.  [Thursday, 

is  a  member  of  the  Committee  on  Indian  Affairs,  but  I  do  desire  to 
speak  briefly  on  this  question. 

In  what  I  shall  say  I  do  not  expect  to  enlighten  any  member  of 
this  Convention.  I  speak  as  the  farmer  boy  whistles,  merely  for  my 
own  amusement  and  satisfaction.  I  believe,  Mr.  President,  that 
every  reason  that  ever  has  been  advanced  or  ever  can  be  advanced 
why  men  should  vote,  can  be  advanced  with  equal  power  and  force 
why  women  should  vote.  (Applause.)  But  I  do  not  believe  all 
men  should  vote.  I  believe  that  the  monumental  blunder  of  the 
nineteenth  century  was  made  when  the  elective  franchise  was  given 
to  all  male  citizens.  Do  you  ask  me  then  how  I  can  consistently 
support  a  measure  giving  the  franchise  to  all  female  citizens.  My 
answer  is  this:  That,  while  a  monumental  blunder  was  made  in 
granting  the  elective  franchise  to  all  male  citizens,  a  greater  blunder 
would  have  been  made  had  it  been  denied  to  all  male  citizens. 
And  so,  Mr.  President,  while  I  myself  am  in  favor  of  an  educational 
qualification  for  female  citizenship  rather  than  to  say  that  the  noble 
women  of  this  country  shall  not  have  the  elective  franchise,  I  am  in 
favor  of  giving  it  to  all;  for,  if  forced  to  choose,  I  would  rather  do 
wrong  to  some  than  to  do  an  injustice  to  many.  I  do  not  believe  that 
this  Convention  ought  to  raise  a  barrier  against  citizenship  that  will 
prohibit  all  women  from  ever  exercising  the  right  of  the  elective 
franchise.  If  you  say  that  she  shall  have  $10,000  worth  of  property, 
it  is  possible  for  her  to  qualify  herself  and  fulfil  the  requirements  of 
citizenship.  If  you  say  that  she  shall  have  the  culture  and  brain 
of  a  Webster,  it  is  still  possible  for  some  women  to  pass  even 
beyond  that  limit,  and  be  qualified  for  citizenship.  But  when  you 
say  that  a  person  must  be  a  male  citizen  before  he  or  she  is  qualified 
for  citizenship,  you  have  raised  a  barrier  over  which  no  woman, 
however  qualified  she  may  be,  can  ever  pass.  (Applause.) 

I  believe  that  the  elective  franchise  should  be  granted  to  our  wives 
and  our  sisters  and  our  mothers,  because  I  believe  in  an  educated 
and  patriotic  motherhood.  I  believe  if  society  is  ever  to  be  regene- 
rated and  uplifted  it  is  to  be  regenerated  and  uplifted  through  an 
enlightened  and  patriotic  motherhood.  This  nation  is  in  need  of 
educated  and  patriotic  mothers.  I  believe  that  when  Johnny 
comes  home  from  school  perplexed  with  the  problems  of  civil  gov- 
ernment or  political  economy,  we  should  make  it  possible  for  him 
to  go  to  his  mother  and  receive  some  information.  The  last  person 
that  a  boy  or  a  girl  ought  to  be  ashamed  of  in  this  world  is  his 
mother,  especially  if  that  shame  is  due  to  ignorance  on  her  part. 
She  ought,  at  all  times,  to  be  in  sympathy  with  her  children  and 
able  to  give  them  information  and  education;  and  for  this  reason  I 


August  9.]  CONSTITUTIONAL  CONVENTION.  293 

believe  that  the  elective  franchise  should  be  conferred  upon  the 
mothers  of  this  country.  I  believe  that  the  elective  franchise  should 
be  given  to  women,  because  I  believe  that  the  home  is  the  unit  of 
civilization,  and  that  the  home  finds  its  protection  in  the  mothers 
and  wives  of  this  country.  Under  all  government  is  society,  and 
under  society  is  the  home,  and  the  home  is  made  possible  by  the 
sanctities  of  womanhood.  And  unless  woman  is  given  the  power 
to  protect  the  home  and  to  make  potent  the  sanctities  of  woman- 
hood through  the  ballot  we  have  robbed  her  of  half  her  usefulness. 
When  she  has  made  home  beautiful  she  has  beautified  and  exalted 
society,  and  when  she  has  uplifted  and  exalted  society  she  has  puri- 
fied and  exalted  government.  And  for  those  reasons,  Mr.  Chair- 
man, I  believe  that  the  right  of  elective  franchise  should  be 
conferred  upon  our  women.  I  know  that  those  who  take  this  posi- 
tion are  called  sentimentalists.  I  have  reluctantly  expressed  my 
opinion  this  evening  because  of  the  fear  that  I  should  be  called  a 
sentimentalist,  but,  Mr.  Chairman,  rob  life  of  its  sentiment  and  you 
have  taken  from  it  all  its  beauty  and  aroma. 

I  believe,  Mr.  President,  that  if  we  give  to  woman  the  right  to 
vote,  the  darkness  which  sometimes  overshadows  our  national  life 
will  disappear,  and  that  under  a  clearer  sky  and  purer  atmosphere 
•our  national  life  will  grow  stronger  and  nobler,  sanctified  more 
and  more,  consecrated  to  God  and  to  liberty  by  those  who  fall  in 
the  strife  for  the  just  and  the  true.  (Applause.) 

Mr.  Kerwin  —  Mr.  President,  unlike  some  of  the  delegates  who 
have  spoken  heretofore,  I  rise  to  say  that  I  believe  in  voting  for 
this  question  not  merely  to  get  it  before  the  people,  but  I  think  it 
is  right  to  advocate  the  question,  because  I  believe  in  it  honestly, 
that  it  will  tend  to  purify  the  ballot  of  this  State.  (Applause.) 

Mr.  President,  I  sat  here  to-night  and  listened  to  the  members 
of  this  Convention  who  say  that  the  signers  of  certain  petitions  here 
merely  signed  them  to  get  rid  of  the  people  who  presented  them. 
Mr.  President,  I  will  state  in  relation  to  the  city  of  Albany  that 
there  are  twenty-four  organizations  represented  in  the  Central  Fede- 
ration of  Labor  in  Albany  to  which  this  question  was  sent  for  a 
referendum  vote,  and  one  question  that  came  back  with  the  unani- 
mous vote,  the  unanimous  support  of  everyone  of  the  twenty-four 
organizations  was  that  of  universal  suffrage  for  the  woman. 
(Applause.) 

Mr.  President,  I  have  heard  it  stated  upon  this  floor  to-night  that 
women  cannot  go  to  war  and  into  the  battlefields.  I  ask  the  dele- 
gates in  this  Convention  who  did  better  work  from  1862  to  1864 


294  REVISED  RECORD.  [Thursday, 

than  the  noble  women  of  this  country,  who  went  in  and  did  every- 
thing in  their  power  on  the  battlefield? 

Mr.  President,  I  do  not  propose  to  detain  the  Convention  any 
longer.  I  do  not  propose  to  usurp  its  time,  but  I  feel  for  the  work- 
ing people  of  the  city  of  Albany,  who  asked  for  my  nomination  and 
who  sent  me  here  as  their  representative,  that  the  question  most 
important  and  uppermost  in  their  minds  was  that  of  universal 
suffrage. 

Mr.  President,  after  listening  last  night  to  Mr.  Lauterbach,  and 
listening  to  all  the  speakers  down  to  Mr.  Cassidy  to-night,  I  believe 
the  ground  has  been  fully  covered.  All  I  desire  to  say  is  that  I 
heartily  indorse  this  amendment,  not  because  I  believe  in  getting 
rid  of  it  and  sending  it  to  the  people,  but  because  I  believe  it  neces- 
sary and  it  is  right.  (Applause.) 

Mr.  Griswold  —  Mr.  President  and  gentlemen  of  the  Convention, 
there  is  one  question  that  has  been  raised  here,  and  that  is  that 
whatever  may  be  the  views  of  individual  delegates,  at  all  events  this 
question  should  be  submitted  to  the  people  to  determine.  That 
involves  the  duty  of  the  delegates  who  compose  this  Convention. 
We  are  sent  here  to  perform  certain  duties,  and  as  I  understand  the 
principle  of  our  duty  here  it  is  to  examine  the  various  propositions 
that  may  be  presented  to  the  Convention,  and  then  select  certain 
ones  to  be  embodied  in  the  proposed  Constitution  to  be  submitted 
to  the  people  and  to  reject  others.  Now,  those  of  the  minority  who 
come  to  this  Convention  with  propositions  however  wild,  the  same 
argument  can  be  used  in  respect  to  them.  Oh,  submit  it  to  the 
people.  Surely  you  can  submit  it  to  the  people.  Do  not  determine 
it  yourselves,  but  submit  it  to  the  vote  of  the  people.  That  cer- 
tainly is  plausible  upon  its  face,  and  yet  I  submit  that  it  is  not  the 
true  rule  of  action  for  this  Convention.  I  submit  that  the  delegates 
to  this  Convention  were  selected  from  all  over  the  State  to  here 
perform  certain  duties,  among  which  is  to  present  to  the  people  of 
the  State  such  propositions  as  the  majority  of  this  Convention  shall 
approve.  Otherwise,  you  would  have  a  hundred  or  two  hundred 
different  propositions  to  go  to  the  people  upon  which  it  would  be 
impossible  to  vote  intelligently.  And  as  I  understand  the  rule  upon 
which  this  Convention  is  to  act,  it  is  that  only  such  propositions 
shall  be  submitted  to  the  people  as  a  majority  of  this  Convention 
decide  ought  to  pass  into  our  organic  law.  With  that  understanding, 
as  I  believe  it  is,  when  we  submit  a  proposition  to  be  adopted,  it 
stands  as  recommended  by  the  majority  of  this  Convention,  and, 
therefore,  I  repudiate  the  rule  of  action  that  has  been  suggested 
here  that  it  shall  be  submitted  to  the  people,  and  thus  allow  dele- 


August  9.]  CONSTITUTIONAL   CONVENTION.  295 

gates  to  divide  the  responsibility  that  devolves  upon  them  under 
their  oaths  of  office. 

Now,  I  believe  that  every  delegate  here  is  sincere  upon  this 
question.  I  believe  this  is  a  most  important  question,  and  should  be 
treated  seriously  by  every  member  of  the  Convention.  I  recognize 
the  fact  that  the  females  of  this  generation  are  to  be  the  mothers  of 
the  next  generaltion.  I  recognize  the  fact  that  if  you  degrade  and 
demean  the  females  of  this  generation  it  so  faf  tends  to  degrade  and 
demean  the  people  of  the  next  generation.  The  females  of  to-day  are 
to  be  the  mothers  not  only  of  the  female  but  of  the  male  people  of 
this  nation.  I  believe  sincerely  that  this  proposition  to  give 
to  the  female  population  of  this  State  the  right  to  vote  is  one 
wrong  in  principle,  radically  wrong,  one  opposed  to  the  natural  laws 
of  creation  and  of  the  Almighty  who  made  them.  With  the  various 
minds  of  the  people  as  they  are  constituted,  it  would  seem  that  there 
is  no  proposition  so  radical,  so  wild,  that  if  you  can  find  a  few  indi- 
viduals to  agitate  and  preach  it  with  earnestness  and  fervor,  it  will 
find  some  followers. 

Now,  there  are  two  classes  of  women.  They  may  be  classified 
as,  first,  the  matrons,  the  mothers,  of  whom  I  will  have  a  word  to 
say  hereafter,  and  who  it  is  claimed  should  have  the  right  of 
suffrage.  The  other  class  is  the  young  women,  the  women  who 
labor  and  who  have  no  one  to  care  for  or  to  support  or  to  maintain ; 
that  they  should  have  the  right  of  suffrage.  I  have  asked  a  few  the 
question:  Do  you  desire  the  right  of  suffrage?  Yes.  Well,  why? 
One  says,  I  want  to  vote  so  that  I  can  get  the  same  wages  that  a 
man  gets  in  the  various  employments.  Another  lady,  who  was  here 
from  Wyoming,  wanted  the  right  of  suffrage  to  that  class  because 
they  were  engaged  in  the  sweat  shops,  I  think  she  called  them,  and 
only  earning  three  dollars  per  week. 

Now,  how  are  they  going  to  regulate  wages  by  voting?  Do  you 
expect  by  law  to  fix  the  price  that  you  shall  receive  for  your  wages? 
Do  you  expect  to  compel  your  employer  to  pay  a  certain  price? 
Do  you  expect  to  deprive  him  of  the  right  to  employ  those  that  he 
sees  fit?  No  one  can  answer  it. 

There  is  another  class  that  they  say  ought  to  have  the  suffrage, 
and  that  is  the  taxpaying  women ;  and  a  statement  has  been  brought 
in  of  quite  a  number  of  taxpaying  ladies  of  the  counties  of  Albany 
and  Rensselaer.  Of  course,  it  is  not  material  that  their  fathers  or 
brothers  died,  that  is  not  material  at  all.  But  where  is  the  griev- 
ance on  the  part  of  the  taxpaying  ladies?  Is  anyone  taxed  one 
farthing  more  than  anybody  else  in  proportion  to  their  property? 
Is  anyone  taxed  any  more  than  they  would  be  taxed  if  they  voted? 


296  REVISED  RECORD.  [Thursday, 

No  more.  Oh,  but  it  is  the  principle  of  the  thing,  taxation  without 
representation,  like  that  great  and  good  man,  referred  to  by  one 
of  the  speakers,  Thomas  Jefferson,  who  wrote  in  the  Declaration  of 
Independence,  among  the  grievances  against  England,  that  we  were 
taxed  without  representation.  Now,  an  ordinary  legal  mind  would 
say  when  that  document  was  issued  that  we  supposed,  according  to 
history,  that  it  was  a  political  document.  It  was  a  political  docu- 
ment, written  in  the  distress  of  the  weak  colonies  which  were  likely 
to  be  crushed  by  the  overwhelming  power  of  England,  a  political 
document  sent  forth  to  influence  France,  and  Spain,  and  Portugal, 
and  the  rest  of  the  civilized  world.  Did  that  great  and  good  man, 
when  he  wrote  that,  think  that  it  applied  to  woman  suffrage?  If  he 
did  he  was  a  wonderful  hypocrite,  because  he  ought  to  have  gone 
home  and  set  his  wife  free  and  given  her  the  right  to  vote.  But 
this  is  a  representative  government,  as  every  one  must  be,  except 
one  that  is  governed  by  a  monarchy  or  an  oligarchy.  I  come  here 
to-day  to  represent  whom?  I  represent  those  that  voted  for  me  in 
my  district.  Nearly  an  equal  number  voted  otherwise,  and  yet  I 
represent  one  as  much  as  the  other.  Here  is  a  Convention  to-day 
with  a  majority  of  one  political  party,  elected  by  a  small  majority 
over  the  other.  That  party  controls  every  question  here  that  it  sees 
fit,  and  it  represents  not  only  the  members  of  that  party  but  the 
opposing  party  that  voted  directly  against  it. 

Why,  it  is  said  taxation  without  representation.  Can't  the  father 
or  the  husband,  the  brother  or  the  son,  represent  the  wives,  the 
mothers,  the  daughters  and  the  sisters,  and  do  they  not  as  legiti- 
mately represent  them  as  I  represent  those  who  voted  against  me, 
or  as  the  majority  in  this  Convention  represent  those  who  voted 
against  it?  There  can  be  nothing  in  that  argument,  which  has  been 
harped  over  and  over,  of  taxation  without  representation. 

Now,  then,  what  I  object  to,  and  what  I  will  never  consent  to 
vote  for,  is  to  degrade  and  demean  the  womanhood  of  this  State. 
I  believe  it  will  do  that.  I  believe  it  takes  them  out  of  their  proper 
sphere,  and  that  it  is  not  for  their  own  good;  and  instead  of  these 
gentlemen  standing  here  as  the  champions  of  the  female  sex,  I  insist 
upon  it  that  those  who  are  opposed  to  female  suffrage  and  to  drag- 
ging them  down  are  the  real  champions  of  womanhood  in  this 
State.  Do  members  of  this  Convention  believe  that  it  is  necessary 
for  their  wives,  their  sisters  and  their  mothers  to  cast  a  ballot  in 
order  to  be  protected  in  all  their  rights?  Do  they  claim  that  would 
do  it?  I  know  that  some  of  these  woman  suffragists  are  treating 
this  matter  as  an  irrepressible  conflict;  that  man  is  the  natural 
enemy  of  woman  and  that  there  is  an  irrepressible  conflict  between 


August  9.]         •  CONSTITUTIONAL  CONVENTION.  297 

the  two  sexes.  Why,  you  cannot  keep  them  apart  after  they  are 
fifteen  years  old.  (Applause  and  laughter.)  I  certainly  am  serious 
myself,  whether  this  Convention  is  or  not. 

There  is  another  class  of  women.  In  the  eloquent,  elegant  and 
classic  language  of  one  of  these  female  advocates  of  suffrage,  it  is 
called  the  cow-women.  That  is  because  they  are  domestic,  docile, 
non-combative,  acquiescing  in  the  advice  of  the  husband.  That  is 
because  they  are  matrons.  Why,  sir,  in  this  whole  broad  land,  in 
the  rural  districts,  the  hamlets,  the  villages  and  the  cities  the 
matrons  of  our  people  are  found.  We  must  look  for  the  majority 
of  any  class  when  we  legislate  for  them;  and  to  gratify  a  small 
minority,  as  I  maintain  they  are,  I  object  to  having  that  other  class, 
equally  and  a  great  deal  more  important,  dragged  down  and 
degraded.  They  say:  "Are  we  not  as  good  as  negroes?  Are  we 
not  as  good  as  Polanders,  Hungarians  and  all  the  rough  elements 
that  go  to  the  polls?  Are  we  not  as  good  as  they?  "  Yes;  you  are 
as  good  as  they,  and  a  hundred  times  better.  Better  than  any  of 
them,  and  we  don't  propose  to  drag  you  down  to  their  level,  nor  to 
permit  you  to  go  there  if  you  want  to.  (Applause.) 

I  say  some  of  these  women  designated  by  some  of  these  lady 
suffragists  are  all  over  this  land.  They  are  caring  for  their  children; 
they  are  educating  and  giving  the  first  moral  impressions  to  them. 
They  are  instructing  the  girls.  They  are  the  queens  of  the  house- 
hold and  the  home,  making  each  place  a  little  heaven. 

Now,  I  do  not  propose  to  be  one,  by  my  vote,  that  shall  drag 
down  these  women  at  the  sotfcitation  of  a  few,  by  which  this  Con- 
vention has  been  greatly  deceived  and  misled,  in  my  judgment,  and 
I  venture  to  say  that  upon  second,  serious  thought,  at  least  half  of 
those  who  have  signed  these  petitions  would  vote  against  it.  I 
know  it  is  so  in  my  district.  The  time  is  not  yet  ripe  for  this  radical 
change  in  this  country,  and  I  think  we  should  be  wrong  if  we  make 
it  now,  a  wrong  little  less  than  a  crime.  That  being  my  opinion,  I 
shall  vote  to  sustain  the  report  of  the  committee.  (Applause.) 

Mr.  Lester  —  Mr.  President,  it  is  not  my  purpose,  sir,  to  make 
any  extended  argument  upon  the  merits  of  this  question,  which  has 
already  been  so  exhaustedly  discussed  in  this  Convention.  Yet  it 
is  a  subject  which  I  recognize  as  one  of  such  great  importance  that 
I  deem  it  due  to  myself  to  defend  my  position  in  regard  to  it.  The 
question  has  been  frequently  pressed  upon  my  attention  during 
many  years. 

In  fact,  since  the  last  Constitutional  Convention  in  this  State, 
when  two  of  my  relatives  sitting  in  that  Convention  gave  their 
earnest  support  and  their  votes  to  the  proposition  that  the  women 


298  REVISED  RECORD.  [Thursday, 

of  the  State  should  vote  —  one  of  them  making,  in  the  Convention 
of  1867-8,  the  most  finished  and  powerful  argument  in  its  favor  on 
record  prior  to  the  able  arguments  that  have  been  heard  in  this 
House  within  the  past  forty-eight  hours  —  this  speech  was  lately 
printed  and  circulated  as  a  campaign  document  among  the  members 
of  this  Convention  by  the  advocates  of  female  suffrage;  notwith- 
standing these  circumstances  that  seem  to  indicate  my  action  upon 
the  question,  I  am  constrained  by  strong  convictions  as  to  my  duty 
to  break  through  their  influences  and  to  assume  a  contrary  attitude. 
I  cannot  believe  the  time  has  arrived  for  such  an  amendment  as 
that  which  has  been  proposed.  I  cannot  believe  that  it  is  the  duty 
of  this  Convention  to  go  beyond  the  recommendation  of  such 
amendments  as  the  Convention  believes  are  demanded  by  the  pres- 
ent conditions  of  the  State.  I  cannot  believe  that  this  Convention 
was  intended  to  be  a  device  for  ascertaining  the  sentiment  of  the 
public  upon  questions  of  public  policy.  I  cannot  believe,  sir,  we  are 
here  to  launch  the  government  into  a  sea  of  untried  political  experi- 
ments. I  do  believe  that  there  are  certain  necessities  in  the  direc- 
tion of  constitutional  amendment,  principally  in  matters  of  detail, 
for  which  the  people  of  the  State  have  called  us  together.  Let  us 
attend  to  these  necessities  and  return  to  our  homes,  and  the  com- 
mendation of  the  people  will  follow  us.  Let  us  build  a  new  founda- 
tion out  of  political  theories,  however  substantial  they  may  appear 
to  us,  that  have  not  been  subjected  to  the  test  of  experience  and 
endeavor  to  substitute  this  foundation  for  that  upon  which  the 
prosperity  of  the  last  half  century  of  our  existence  has  rested  — 
and  the  people  will  turn  from  this  Convention  and  all  its  work  with 
distrust,  and  stamp  it  with  their  condemnation  at  the  polls.  I  am 
in  favor  of  the  report  of  the  committee  and  hope  that  it  will  be 
sustained. 

Mr.  Goodelle  —  Mr.  President,  we  were  very  much  in  hope  that 
this  discussion  could  be  brought  to  a  close  this  evening  and  a  vote 
be  taken  upon  it,  but  I  am  aware  that  there  are  some  gentlemen 
who  desire  yet  to  be  heard,  and  the  probability  is  that  it  would  be 
at  an  exceedingly  late  hour  that  we  should  go  to  a  vote  this  even- 
ing. I,  therefore,  at  this  time  desire  to  make  this  motion  —  that 
the  discussion  upon  the  question  now  before  the  House  and  the 
vote  thereon  be  taken  on  Tuesday  evening  next,  after  the  close  of 
discussion.  I  do  not  desire  to  have  this  understood  to  be  a  motion 
for  adjournment  at  this  time,  because  if  other  gentlemen  desire  to 
speak,  I  shall  be  very  glad  to  have  them,  and  they  may  use  as  much 
time  this  evening  as  possible;  but  I  think  it  well  at  this  time  to  take 


August  9.]  CONSTITUTIONAL  CONVENTION.  299 

the  sense  of  the  Convention  upon  the  proposition  which  I  have 
made. 

The  Chairman  put  the  question  on  Mr.  Goodelle's  motion,  which 
was  determined  in  the  affirmative. 

Mr.  Kellogg  —  Mr.  President,  I  am  compelled  to  ask  consent  at 
this  time  to  be  excused  from  attendance  at  the  Convention  to- 
morrow. The  reason  I  ask  it  now  is  that  I  have  an  important 
message  which  calls  me  to  my  home,  and  I  shall  have  to  take  the 
eleven  o'clock  train. 

The  Chair  put  the  question  on  the  request 'of  Mr.  Kellogg  to  be 
excused,  and  he  was  excused. 

Mr.  T.  A.  Sullivan  —  Mr.  President,  I  have  only  a  few  words  to 
say  on  this  subject.  I  desire  to  say  them  now.  In  listening  to  the 
able,  interesting,  and  I  may  say  dramatic,  presentation  of  this  ques- 
tion in  behalf  of  the  suffragists  by  the  gentleman  from  New  York 
last  evening,  I  was  attracted  by  a  statement  he  made  with  respect 
to  the  petitions  that  have  been  presented  to  this  body.  Let  me 
quote.  He  used  these  words:  "What  is  their  petition,  that  you, 
having  the  power  to  destroy  the  rights  of  women,  should  not  exer- 
cise it?  You  have  had  the  power  from  time  immemorial.  You 
have  exercised  it  in  your  own  way  and  your  own  fashion.  It  has 
been  consistently  exercised  against  the  rights  of  women." 

Now  I,  for  one,  protest  against  any  such  sentiment.  It  is  true, 
that  under  the  common  law,  when  her  personal  rights,  the  rights  of 
her  property,  the  rights  and  privileges  of  her  person  and  of  her  chil- 
dren, were  largely,  almost  absolutely,  under  the  sway  and  the 
authority  of  her  baron  or  her  guardian  under  that  law  which  almost 
confiscated  all  her  personal  possessions,  under  that  law  which  sub- 
jected her  person  to  corporal  punishment  by  rods  and  switches  in 
the  hands  of  her  guardian  and  her  husband,  true  woman  had  much 
to  complain  of.  Under  that  law  the  great  Sir  William  Blackstone 
said,  after  reviewing  all  these  restrictions  and  disqualifications,  thaf 
.they  were  intended,  not  for  her  harm,  but  for  her  protection  and 
benefit,  and  he  then  adds  by  way  of  rhetorical  period :  "  So  great  a 
favorite  is  the  female  sex  of  the  law  of  England." 

But,  sir,  no  longer  is  woman  wronged  in  her  possessions  or 
restricted  in  her  personal  freedom  and  privileges,  and  no  longer  is 
her  virtue  exposed  to  the  slanders  of  malignity  and  falsehood,  for  he 
who  then  with  impunity  proclaimed  the  pure  maid  or  chaste  matron 
to  be  a  meretricious  or  incontinent  person,  now  falls  within  the  ani- 
madversion of  our  temporal  courts.  Sir,  no  longer  in  our  State 
is  womankind  hampered  or  wronged  in  her  worldly  possessions. 


300  REVISED  RECORD.  [Thursday. 

No  longer  are  her  personal  rights  and  privileges  restricted.  I  say 
now  that  no  class,  no  number  or  form  or  manner  of  persons  or  of 
rights  or  interests  are  so  well,  so  fully,  so  liberally,  so  ably  guarded 
and  surrounded  by  the  protection  of  the  law,  not  only  in  its  letter, 
but  in  its  spirit,  interpretation  and  administration,  as  is  the  law  in 
relation  to  the  proprietary  and  personal  rights  and  privileges  of 
womankind;  and,  sir,  I  say  now,  and  challenge  any  controversy, 
than  womankind  no  greater  favorite  is  known  to  the  laws  of  the 
State  of  New  York.  In  behalf  of  my  district,  the  Thirtieth  Sena- 
torial District  of  this  State,  I  will  say  that  almost  the  unanimous 
sentiment  of  the  voters  of  that  district  is  against  this  movement, 
against  submission  to  them ;  and  I  say  this  as  a  respecter  of  woman, 
as  a  lover  of  woman.  The  gentleman  asks  that  we  submit  this 
question  to  the  jury.  What  jury,  pray  you?  As  I  understand  the 
principles  of  democratic  government,  it  is  government  by  the 
majority.  The  will  of  the  majority  is  made  manifest  through  the 
exercise  of  the  ballot,  the  suffrage,  and  one  of  the  greatest  evils  that 
we  have  to  contend  with  to-day  is  that  citizens  —  aye,  citizens,  the 
representatives  of  historic  families  —  will  not,  do  not  enter  into  the 
spirit  of  the  duty  of  that  privilege,  and  do  not  exercise  it.  Now, 
sir,  what  are  we  about  to  do?  We  are  to  impose  that  duty  —  that 
moral  duty  —  would  that  I  might  say  that  it  was  legally  compul- 
sory—  upon  a  vast  number  of  persons;  and  do  they  want  it?  Do 
a  majority  of  the  women  of  the  State  of  New  York  to-day  come  here 
and  demand  of  us  that  they  be  given  this  privilege  and  that  we 
impose  upon  them  this  duty?  I  say  I  cannot  believe  it;  and,  sir,  if 
they  do  not,  we  have  no  right  to  impose  it,  and  whatever  might  be 
the  result,  if  this  question  were  submitted  to  the  woman's  constitu- 
ency that  I  represent,  if  I  read  their  heart  aright,  instinct  tells  me 
that  it  is  noble  and  true.  I  confess  that  the  range  of  my  intel- 
lect is  too  narrow  to  know  woman's  mind,  but  I  say  if  this  ques- 
tion were  submitted  to  the  votes  of  the  constituency  that  I  repre- 
sent, and  they  should  vote  upon  it  at  the  next  election,  it  would 
bode  your  cause  no  good.  Do  you  wish  to  submit  this  question 
in  this  manner?  If  you  have  truly  the  purpose  of  acquiring  for. 
woman  the  right  of  franchise  at  heart,  do  you  want  to  risk  it  upon 
this  hazard?  Do  you  want  upon  the  record  the  verdict  of  the  great 
State  of  New  York,  that  will  be  overwhelmingly  against  you?  If 
you  do,  there  you  stand,  and  this  record  will  ever  stand  before 
you  wherever  you  attempt  to  secure  this  privilege,  no  matter  in 
what  field ;  the  great  Empire  State  will  stand  —  I  feel  it,  I  know  — 
four-fold  against  you.  For  this  reason,  and  in  behalf  of  my  con- 
stituency, I  must  support  the  report  of  this  committee,  not  only 


August  9.]  CONSTITUTIONAL  CONVENTION.  301 

against  this  Convention's  granting  the  right  to  woman  to  vote,  but 
also  against  submitting  it  to  the  vote  of  the  people. 

Mr.  Mereness  —  Mr.  President,  upon  a  question  which  has  been 
the  subject  of  so  much  oratory,  it  is  with  great  hesitancy  that  I  arise 
to  take  up  any  of  the  time  of  this  Convention  by  a  contribution  to 
the  literature  upon  this  subject,  which,  I  am  convinced,  will  proba- 
bly not  influence  the  vote  of  any  delegate  upon  this  floor.  And  yet, 
sir,  as  the  discussion  is  so  open  upon  this  question,  I  suppose  that 
it  is  very  appropriate  that  those  who  feel  called  upon  to  speak  are  at 
liberty  to  do  so. 

Now,  sir,  the  first  great  subject  that  seems  to  be  at  the  threshold 
of  all  this  discussion,  is  the  subject  of  the  petitions  which  have  been 
presented  to  this  body.  I  am  not  here  to  assume  that  the  peti- 
tioners are  acting  in  bad  faith.  If  I  understand  that  question  cor- 
rectly, there  are  some  300,000  actual  petitioners  upon  this  subject. 
We  are  told  that  in  addition  to  that  there  are  organizations  repre- 
sented here  to  the  amount  of  several  hundred  thousand  more;  but 
as  to  whether  those  organizations  are  also  included  in  the  written 
petitions  we  have  no  evidence;  so  that  at  the  threshold  of  this  dis- 
cussion we  are  unable  to  say  how  much  repeating  has  been  done  in 
the  interest  of  this  movement.  So  far  as  I  am  myself  concerned, 
sir,  in  the  county  that  I  have  the  honor  to  represent,  we  have  at 
least  15,000  adult  persons.  I  believe,  if  I  am  correctly  informed, 
it  is  claimed  that  there  are  some  1,100  petitioners  out  of  that  15,000. 
With  the  industry  that  has  been  shown  by  the  solicitors  of  signa- 
tures, I  am  bound  to  assume  that  nearly  every  adult  within  my 
county  has  been  asked  by  some  fair  damsel,  or  otherwise,  to  sign 
a  petition,  and  as  there  is  only  one  in  fifteen  recorded  in  favor  of 
the  movement,  I  think  that  I  can  best  represent  my  constituency 
by  voting  in  favor  of  this  report.  In  addition  to  that,  sir,  I  have 
seen  the  names,  as  far  as  I  have  examined  this  little  petition  from 
our  county,  of  a  number  of  gentlemen  who  have  told  me  privately 
that  they  did  not  want  woman  suffrage,  but  that  when  the  petition 
was  presented  to  them  they  had  no  time  to  argue  with  the  fair  can- 
vasser, and  so  concluded  that  it  was  easier  to  shirk  the  matter  off 
on  us  at  this  Convention.  Mr.  President,  I  have  the  utmost  respect 
for  any  sincere  believer  in  the  doctrine  of  woman  suffrage.  If  the 
arguments  in  favor  of  that  doctrine  have  convinced  the  mind-  of  a 
fair-minded  man  or  woman,  I  have  the  utmost  respect  for  his  or  her 
opinion,  and  would  be  always  glad  to  see  them  stand  up  and  defend 
the  principle.  But,  sir,  with  all  due  respect  to  some,  who  I  fear 
are  members  of  this  Convention,  I  have  no  sympathy  with  those 


302  REVISED  RECORD.  [Thursday, 

who  are  absolutely  opposed  to  the  proposition  and  intend  to  shirk  it 
off  on  to  the  people. 

Mr.  Cassidy  —  Mr.  President,  may  I  interrupt  the  gentleman  for 
a  moment? 

Mr.  Mereness  —  Mr.  Cassidy  will  have  abundant  time,  I  trust, 
and  I  think  this  is  not  a  catechism 

Mr.  Cassidy  —  I  simply  want  to  ask  a  question. 

Mr.  Mereness  —  I  decline  to  give  way  to  the  gentleman  at  the 
present  time.  A  little  later  on  I  shall  be  glad  to  be  catechised  by 
him  or  any  other  gentleman. 

Mr.  President,  while  I  say  we  ought  not  to  assume  that  these 
petitions  are  presented  in  bad  faith,  I  think  that  we,  as  reasonable 
men,  should  apply  our  experience  to  the  subject  of  petitions  gener- 
ally, and  when  we  have  arrived  at  a  conclusion  upon  that  subject, 
we  should  give  them  such  due  weight  as  we  think  they  are  entitled 
to  receive. 

Another  fact  so  far  as  the  question  of  petitions  is  concerned, 
Mr.  President;  there  is  no  petitioner  represented  in  this  Convention 
upon  this  subject  who  has  any  official  responsibility  upon  that 
subject.  On  the  other  hand,  every  delegate  in  this  Convention  is 
charged  with  official  responsibility,  and  while  they  come  to  us  with 
a  siren-like  voice  and  say,  "  Please,  please  let  us  submit  it  to  the 
people,"  if  we  vote  to  submit,  how  long  will  it  be,  fellow-delegates, 
before  these  fair  ladies  will  go  out  to  the  people  and  say,  "  Oh,  those 
170  representatives  of  the  great  Emipre  State,  comprising  a  large 
portion  of  the  intelligence  of  the  State,  and  all,  or  nearly  all,  of  the 
male  virtue  of  the  State,  have  adopted  this  solemnly,  and  in  the 
discharge  of  their  official  duty  they  have  decided  that  it  is  wise  to 
put  into  the  Constitution  of  this  Emipre  State  a  provision  opening 
the  door  to  a  million  and  a  half  of  new  voters,  and,  therefore,  you 
people  who  do  not  know  as  much  as  the  delegates,  have  no  business 
to  set  up  your  judgment  against  theirs,  and,  therefore,  you  must 
adopt  it?"  Now,  sir,  the  question,  as  it  occurs  to  me,  is  this  — 
whether  upon  this  showing  we  are  to  add  to  the  electorate  of  this 
State  a  million  and  a  half  of  voters,  without  any  assurance,  or  with- 
out any  evidence,  except  such  as  rhetoric  affords,  that  there  is  to  be 
any  improvement  in  the  quality  of  that  electorate.  Mr.  President, 
it  is  with  some  hesitancy  that  I  refer  to  a  very  specious  argument, 
as  I  regard  it,  upon  this  subject  —  because  when  this  point  is  made 
a  great  many  gallant  gentlemen  say:  "  Oh  the  women  are  a  great 
deal  more  honest  than  the  men,  and,  therefore,  if  you  let  them  vote, 
the  quality  of  suffrage  will  be  very  much  improved."  I  am  not  here 


August  9.]  CONSTITUTIONAL  CONVENTION.  303 

to  raise  any  question  as  to  the  honesty  or  the  virtue  of  woman;  but 
I  am  here  to  say  that  I  believe  that  God  has  implanted  in  man  as 
many  of  the  virtues  and  good  qualities  as  he  has  in  woman,  and  I 
do  not  say  that  he  did  any  more.  Now,  sir,  they  have  had  female 
suffrage  in  a  number  of  places.  They  have  a  practical  test;  and 
has  anybody  presented  a  scintilla  of  proof  that  in  those  places  where 
female  suffrage  has  obtained  women  are  any  better  off,  or  that 
government  is  any  better  off,  than  it  is  in  the  State  of  New  York? 
If  any  such  evidence  as  that  has  been  presented  I  have  not  heard 
it  read,  and  I  have  listened,  sir,  to  every  oral  argument  that  has 
been  made  upon  this  subject  on  this  floor;  and  I  have  read  —  my 
time  has  been  limited  and  I  could  not  read  them  all  —  but  I  have 
read  acres  of  argument  in  favor  of  the  movement.  But  they  say 
that  the  argument  is  all  in  favor  of  the  proposition.  Why,  Ignatius 
Donnelly  has  written  a  lengthy  argument  upon  the  subject  of  Bacon 
and  Shakespeare.  He  has  woven  beautiful  theories  to  the  effect 
that  there  never  was  such  a  man  as  Shakespeare,  as  we  know  of. 
But  has  he  convinced  anybody  that  there  was  not?  Col.  Robert  G. 
Ingersoll  has  held  thousands  and  hundreds  of  thousands  of  people 
in  thraldom,  I  may  say,  if  that  is  a  proper  word,  upon  the  proposi- 
tion that  there  is  no  God.  But  has  he  established  the  proposition? 
His  argument  is  beautiful,  so  far  as  rhetoric  is  concerned;  but  it 
fails  to  convince.  Now,  sir,  I  will  not  attempt  to  answer  the  very 
eloquent  gentleman  who  opened  the  argument  upon  the  side  of  the 
women  on  this  question.  I  would  not  attempt,  sir,  to  arrogate  to 
myself  any  such  distinguished  ability  as  to  be  able  to  do  that;  but 
I  was  a  little  surprised  that  he  was  not  able,  or  was  not  willing,  to 
concede  that  people  who  did  not  believe  with  him,  were  actuated  by 
good '  motives,  and  that  possibly  there  were  some  things  which 
appealed  to  us  so  far  as  our  judgment  is  concerned.  Sir,  the  wife 
has  charge  of  the  household.  If  the  human  race  is  to  be  perpetu- 
ated in  its  purity,  it  is  woman  that  must  take  care  of  that;  and  for 
one  I  am  not  in  favor  of  adding  to  that  burden,  the  burden  of  taking 
care  of  the  politics  of  the  country  besides.  I  think,  sir,  that  I  have 
spent  time  enough  upon  this  question.  I  suppose  a  good  deal 
more  could  be  said,  but  at  this  late  hour  I  think  it  is  hardly  worth 
while.  I  will  only  say  this,  that  while  I  disclaim  any  intention  to 
answer  the  able  argument  of  the  foremost  exponent  of  that  measure, 
if  I  may  be  allowed  to  so  characterize  him  upon  the  floor  of  this 
Convention,  I  will  yield  to  him  nothing  in  the  honesty  of  my  inten- 
tions; and  if  I  had  a  thousand  votes  upon  the  floor  of  this  Conven- 
tion, they  would  all  go  to  sustain  the  report  of  this  committee. 
Mr.  Cassidy  was  recognized  by  the  Chair. 


304  REVISED  RECORD.  [Thursday, 

Mr.  Cassidy  —  Did  I  understand  the  gentleman  to  say  that  fif- 
teen per  cent  of  his  constituency  were  hypocrites  and  liars? 

Mr.  Mereness  —  If  the  gentleman  so  understood  me  his  hearing 
must  be  very  defective. 

Mr.  Dickey  —  Will  the  gentleman  allow  me  to  ask  him  a 
question? 

Mr.  Mereness  —  Yes ;  I  am  very  willing  to  furnish  entertainment 
for  Mr.  Dickey.  He  seems  to  need  a  little. 

Mr.  Dickey  —  I  would  like  to  ask  the  gentleman  how  many 
people  who  live  in  his  district  have  told  him  that  they  lied  when 
they  signed  that  petition  for  woman  suffrage. 

Mr.  Mereness  —  I  am  very  happy  to  say,  sir,  that  I  represent  a 
constituency  to  none  of  whom  the  term  used  by  the  gentleman 
applies. 

Mr.  Dean  —  Mr.  President,  while  there  is  a  sufficient  number  of 
people  here  to  carry  the  motion,  I  move  that  the  Convention  do  now 
adjourn. 

The  Chair  put  the  question  on  the  motion  to  adjourn,  and  it  was 
determined  in  the  negative. 

Mr.  M.  E.  Lewis  —  I  desire  to  send  to  the  Clerk's  desk  and  have 
read  an  article  clipped  from  a  daily  newspaper  of  this  date,  bearing 
upon  this  question. 

Mr.  Cassidy  —  I  object  to  that,  on  the  ground  that  it  assumes  that 
what  you  see  in  the  newspaper  is  truthful;  unless  the  gentleman  can 
verify  the  truthfulness  of  the  statement,  I  object  to  having  it 
injected  in  here. 

Mr.  Moore  —  I  object  to  it  —  I  rise  to  a  question  of  privilege. 

The  Chair  —  The  Secretary  will  read  the  article.  It  may  save  us 
a  long  speech.  We  will  allow  this  to  be  read. 

The  Secretary  read  the  following* extract  offered  by  Mr.  Lewis: 

"  MARRIAGE  AND  POLITICS  MIXED. 

"  MINNEAPOLIS,  Aug.  9. —  A  paper  published  at  Forman,  N.  D., 
brings  out  a  romantic  incident  in  connection  with  the  nomination 
by  the  Republican  State  convention  of  Miss  Emma  F.  Bates,  of 
Valley  City,  to  be  State  Superintendent  of  Schools. 

"  Miss  Bates  had  charge  of  her  own  canvass  for  the  nomination 
and  found  formidable  opponents  in  John  H.  Devine  and  Prof.  J.  H. 
Holland.  She  was  able  to  sidetrack  the  latter  by  making  herself 
solid  with  the  Young  Men's  Republican  League.  She  then  entered 


August  9.]  CONSTITUTIONAL  CONVENTION.  305 

into  negotiations  with  Mr.  Devine,  first  demanding  unconditional 
surrender.     This  he  refused. 

"After  further  negotiations,  it  is  said,  he  agreed  to  pull  off  the 
track  provided  she  would,  if  elected  State  Superintendent,  make  him 
her  deputy,  and  marry  him  into  the  bargain.  After  some  delibera- 
tion, she  agreed  to  do  this,  provided  he  would  stump  the  State  for 
her.  This  was  also  agreed  to.  As  he  is  a  powerful  speaker,  Miss 
Bates  is  conceded  to  have  made  the  shrewdest  political  deal  yet 
known." 

Mr.  Cassidy  —  Mr.  President,  I  move  a  vote  of  thanks  of  this 
Convention  be  extended  Miss  Bates. 

Mr.  M.  E.  Lewis  —  I  move  that  the  Convention  do  now  adjourn. 

Mr.  Cochran  —  I  do  not  understand  that  the  President  rules  the 
motion  to  adjourn  to  be  in  order  before  any  other  business  has  been 
transacted. 

The  Chair  —  The  Chair  does  not  understand  that  the  motion  to 
adjourn  was  seriously  meant. 

Mr.  Maybee  —  If  it  is  not,  I  make  a  motion  to  adjourn,  and  ask 
for  a  rising  vote.  I  think  the  lateness  of  the  hour  indicates  the 
necessity  of  an  immediate  adjournment. 

The  Chair  then  put  the  question  on  Mr.  Maybee's  motion  to 
adjourn,  which  was  determined  in  the  affirmative  by  a  rising  vote  — 
46  to  32. 


Friday  Morning,  August  10,  1894. 

The  Constitutional  Convention  of  the  State  of  New  York  met  in 
the  Assembly  Chamber  at  the  Capitol,  Albany,  N.  Y.,  Friday, 
August  10,  1894. 

President  Choate  called  the  Convention  to  order  at  ten  o'clock. 

Prayer  was  offered  by  the  Rev.  A.  Kennedy  Duff. 

Mr.  O'Brien  moved  that  the  reading  of  the  minutes  of  Thursday, 
August  Qth,  be  dispensed  with. 

The  President  put  the  question  on  the  motion  of  Mr.  O'Brien, 
and  it  was  determined  in  the  affirmative. 

Mr.  Hedges  —  Mr.  President,  Mr.  Arnold,  last  evening,  received 
a  dispatch  summoning  him  home  unexpectedly,  and  he  requested 
me  to  ask  that  he  be  excused  for  to-day. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Arnold,  and  it  was  determined  in  the  affirmative. 
20 


306  REVISED  RECORD.    •  [Friday, 

The  President  —  Mr.  Vedder  also  asked  to  be  excused  for  to-day. 
The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Vedder,  and  it  was  determined  in  the  affirmative. 

Mr.  Durfee  —  Mr.  President,  I  will  be  detained  from  the  sessions 
of  the  Convention,  on  affairs  of  importance  on  Tuesday,  and  pos- 
sibly Wednesday,  of  next  week,  and  I  ask  for  leave  of  absence  on 
those  days. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Durfee,  and  it  was  determined  in  the  affirmative. 

Mr.  Durnin  —  Mr.  President,  I  ask  to  be  excused  for  four  days, 
beginning  with  Tuesday  of  next  week. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Durnin,  and  it  was  determined  in  the  affirmative. 

Mr.  Cornwell  —  Mr.  President,  I  ask  to  be  excused  for  the  day. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Cornwell,  and  it  was  determined  in  the  affirmative. 

Mr.  Chipp  —  Mr.  President,  I  would  like  to  be  excused  during 
next  week. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Chipp,  and  it  was  determined  in  the  affirmative. 

Mr.  Bigelow  —  Mr.  President,  I  would  like  to  excused  after 
Wednesday  for  the  rest  of  next  week. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Bigelow,  and  it  was  determined  in  the  affirmative. 

Mr.  McKinstry  —  Mr.  President,  Mr.  Pool,  of  Niagara,  received 
a  telegram  last  evening  summoning  him  home  on  account  of  illness 
in  his  family,  and  he  would  like  to  be  excused  to-day,  and  possibly 
next  Tuesday. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Pool,  and  it  was  determined  in  the  affirmative. 

The  President  —  Mr.  Lauterbach  asked  to  be  excused  from 
attendance  to-day. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Lauterbach,  and  it  was  determined  in  the  affirmative. 

The  President  —  Memorials  and  petitions  are  in  order.  Are 
there  any  communications  from  State  officers?  Notices,  motions 
and  resolutions  are  in  order.  The  Secretary  will  call  the  districts. 

Mr.  A.  H.  Green  —  Mr.  President,  I  desire  to  move  that  the 
constitutional  amendment  (No.  374)  proposed  by  me  respecting  the 


August  10.]  CONSTITUTIONAL  CONVENTION.  307 

reporting  on  certain  classes  of  money,  which  was  referred  to  the 
Special  Committee,  be  taken  from  that  committee,  and  referred  to 
the  Committee  on  State  Finances. 

The  President  —  Has  it  yet  been  reported  by  the  Special 
Committee? 

Mr.  Green  —  It  has  not.  I  suppose  the  committee  will  not 
approve  of  its  being  printed,  and  I  desire  to  have  it  go  to  the  other 
committee. 

The  President  —  Under  the  rules,  the  Chair  considers  the  motion 
not  in  order  until  that  committee  has  been  heard  from.  I  believe 
the  report  has  been  prepared,  and  your  motion  should  be  deferred 
until  then. 

Mr.  Green  —  I  supposed  it  to  be  perfectly  in  order  to  transfer  it 
from  that  committee  to  another. 

The  President  —  The  Committee  on  Rules  has  the  power  to  deter- 
mine what  disposition  shall  be  made  of  it,  or,  at  least,  of  reporting 
their  determination.  I  suppose  it  will  be  perfectly  in  order  to  trans- 
fer it  from  that  committee  to  the  other. 

Mr.  Green  —  I  supposed  it  would  be  in  order.  I  understand  the 
Special  Committee  do  not  propose  to  have  the  amendment  printed. 

The  President  —  Will  Mr.  Green  postpone  the  matter  until 
Mr.  Brown,  the  chairman  of  the  Special  Committee,  comes  in? 

Mr.  Rowley  offered  the  following  resolution: 

R.  1 66. —  Resolved,  That  one  thousand  copies  of  the  table  of 
statistics,  submitted  by  E.  C.  Rowley,  be  printed  for  the  use  of  the 
Convention. 

Mr.  Rowley  —  Will  the  Secretary  please  read  the  communication 
accompanying  the  resolution? 

The  President  —  The  Secretary  will  read  the  communication. 
The  Secretary  read  the  communication  as  follows: 

"  To  the  Constitutional  Convention: 

"  The  undersigned  has  the  honor  to  submit  herewith  a  table  of 
statistics,  which  he  hopes  will  be  useful  to  this  Convention.  The 
table  contains  the  following  information: 

"  First.  The  cost  per  M.  paid  by  each  county  in  the  State  for 
printing  official  ballots  at  the  last  general  election. 

"  Second.    The  number  of  ballots  provided  by  each  county. 

"  Third.  The  cost  per  page  for  printing  the  proceedings  of 
boards  of  supervisors  in  each  county  of  the  State. 


308  REVISED  RECORD.  [Friday, 

"  Fourth.  The  number  of  pages  contained  in  each  book  of 
supervisors'  proceedings. 

"  Fifth.  The  number  of  copies  of  book  of  supervisors'  proceed- 
ings issued  by  each  county. 

"  Totals  and  averages  are  given  and  the  figures  are  believed  to  be 
accurate.  Behind  every  figure  there  is  a  written  voucher  and  a 
responsible  name. 

"  The  work  was  originally  undertaken  for  the  board  of  super- 
visors of  Columbia  county,  but  is  now  submitted  to  this  Convention 
in  compliance  with  the  urgent  request  of  many  of  the  delegates  who 
have  examined  the  table. 

"  Respectfully, 

"  EDWARD  C.  ROWLEY," 

The  President  put  the  question  on  Mr.  Rowley's  resolution,  and  it 
was  determined  in  the  affirmative. 

Mr.  Moore  —  Mr.  President,  are  memorials  in  order  now? 
The  President  —  They  can  be  received,  if  without  objection. 

Mr.  Moore  —  I  do  not  know,  Mr.  President,  but  what  there  is 
something  of  this  kind  in,  but  I  have  received  a  request  to  present  a 
memorial  from  the  Flushing  Village  Association  as  to  a  proposed 
amendment  to  the  Constitution  in  regard  to  pool  selling.  I  do  not 
know  whether  one  has  been  received  or  not. 

The  President  —  There  is  one  received  and  referred  to  the  Com- 
mitte  on  Powers  and  Duties  of  the  Legislature,  and  yours  will  take 
the  same  course. 

Mr.  E.  R.  Brown  —  Mr.  President,  I  desire  to  offer  a  resolution. 

The  President  —  The  Secretary  will  read  the  resolution. 

The  Secretary  read  the  resolution  as  follows: 

R.  167. —  Resolved,  That  after  August  15  sessions  of  the  Con- 
vention shall  be  held  every  day  of  the  week,  except  Sunday,  and 
that  the  sessions  commence  at  ten  o'clock  A.  M.,  and  at  three 
o'clock  and  eight  o'clock  P.  M.,  except  that  no  session  be  held  on 
Saturday  evening  until  further  ordered. 

The  President  —  The  resolution  is  open  for  consideration. 

Mr.  Bowers  —  Mr.  President,  I  make  the  point  of  order  that  it 
should  go  to  the  Committee  on  Rules.  Rule  56  is:  "  All  proposed 
action  touching  the  rules  and  orders  of  business  shall  be  referred, 
as,  of  course,  to  the  Committee  on  Rules."  This  does  touch  the 
order  of  business,  and  I  submit  that  it  should  go  to  the  Committee 
on  Rules  before  it  is  submitted  to  the  House  for  adoption. 


August  10.]  CONSTITUTIONAL  CONVENTION.  309 

The  President  —  The  point  of  order  is  well  taken.  If  Vice- 
President  Steele  will  be  good  enough  to  take  the  chair,  the  Com- 
mittee on  Rules  will  meet  immediately.  The  Committee  on  Rules 
will  please  withdraw  to  the  President's  room. 

Second  Vice-President  W.  H.  Steele  took  the  chair. 

Mr.  Hill  —  Mr.  President,  I  move  you  that  the  number  of  copies 
of  the  report  made  by  Mr.  Rowley  be  two  thousand,  instead  of  one 
thousand,  as  provided  by  his  resolution  just  passed  by  the  Con- 
vention. It  contains  a  list  of  the  cost  of  election  expenses  in  the 
different  counties  in  this  State.  It  seems  to  me  that  we  ought  to 
have  two  thousand  in  number,  instead  of  one  thousand,  as  contem- 
plated by  his  resolution. 

The  President  put  the  question  on  the  motion  of  Mr.  Hill,  and  it 
was  determined  in  the  affirmative. 

The  President  pro  tern. —  Reports  of  committees  are  in  order. 
The  Secretary  will  read  the  list  of  standing  committees. 

The  Secretary  proceeded  to  call  the  list  of  committees. 

Mr.  Barhite  (for  Mr.  Vedder),  from  the  Committee  on  Legisla- 
tive Powers  and  Duties,  to  which  was  referred  the  proposed  con- 
stitutional amendment  introduced  by  Mr.  W.  H.  Steele 
(introductory  No.  322),  entitled,  "  Proposed  constitutional  amend- 
ment to  amend  section  16  of  article  3  of  the  Constitution,  as  to 
restriction  of  private  and  local  bills,"  reports  that  it  is  the  desire 
of  the  committee  that  this  be  considered  in  connection  with  bill 
No.  214,  and  report  in  favor  of  the  passage  of  the  same. 

The  President  pro  tern. —  The  question  is  on  agreeing  with  the 
report  of  the  committee. 

Mr.  Hawley  —  That  report  merely  expresses  a  desire,  as  I  under- 
stand it,  of  the  committee  that  this  bill,  which  is  favorably  reported, 
should  be  considered  in  connection  with  another.  Doesn't  it  go  to 
the  Committee  of  the  Whole? 

The  President  pro  tern. —  The  Chair  understands  it  is  to  be  con- 
sidered in  connection  with  another  proposition. 

Mr.  Barhite  —  It  was  simply  the  opinion  of  the  committee  that, 
as  this  amendment  amends  the  same  section  as  another  amendment, 
which  is  in  Committee  of  the  Whole,  the  one  should  be  considered 
in  connection  with  the  other.  The  report,  as  I  understand  it,  simply 
goes  to  the  Committee  of  the  Whole.  That  was  reported  to  this 
Convention  in  order  that  it  might  understand  that  the  committee 
was  not  inconsistent  in  its  reports. 

The  President  pro  tern,  put  the  question  on  agreeing  with  the 


310  REVISED  RECORD.  [Friday, 

report  of  the  committee,  and  it  was  determined  in  the  affirmative, 
and  the  proposed  amendment  was  committed  to  the  Committee  of 
the  Whole. 

Mr.  Barhite  (for  Mr.  Vedder),  from  the  Committee  on  Legislative 
Powers  and  Duties,  to  which  was  referred  the  proposed  constitu- 
tional amendment,  introduced  by  Mr.  Roche  (introductory  No.  99), 
entitled  "  Proposed  constitutional  amendment  to  amend  article  3 
by  the  addition  of  a  new  section  prohibiting  the  Legislature  or  any 
division  of  the  State  from  granting  pensions  to  any  civil  officers  or 
employes  not,  however,  including  existing  police  and  fire  depart- 
ment pension  funds,"  reports  in  favor  of  the  passage  of  the  same, 
with  some  amendment. 

The  President  pro  tern,  put  the  question  on  agreeing  with  the 
report  of  the  committee,  and  it  was  determined  in  the  affirmative, 
and  the  proposed  amendment  committed  to  the  Committee  of  the 
Whole. 

Mr.  Hawley,  from  the  Committee  on  Corporations,  reports  an 
original  constitutional  amendment. 

O.  377. — "  Proposed  constitutional  amendment  to  amend  article 
8  of  section  i  of  the  Constitution,  relating  to  corporations,"  and 
in  favor  of  the  passage  of  the  same. 

The  President  pro  tern. —  The  question  is  on  agreeing  with  this 
report. 

Mr.  Hawley  —  I  do  not  understand  that  to  be  the  question. 
I  understand  the  rules  to  be  that  the  proposed  amendment  shall  be 
read  and  it  goes  to  the  Committee  of  the  Whole,  as  a  matter  of 
course. 

The  President  pro  tern. —  That  is  correct. 

Mr.  Becker  —  I  call  for  the  reading  of  the  amendment. 

The  Secretary  read  the  proposed  amendment,  and  it  was  referred 
to  the  Committee  of  the  Whole. 

Mr.  Lester  —  I  would  like  to  ask  the  President  whether  he  con- 
siders that  the  adoption  of  the  report  of  the  committee,  in  respect 
to  the  proposed  amendment  of  Mr.  Roche,  abolishing  pensions, 
which  has  been  the  subject  of  discussion  in  this  Convention  for 
several  days,  has  now  been  adopted  by  the  vote  in  the  affirmative  of 
a  single  member  of  this  Convention? 

The  President  pro  tern. —  The  Secretary  informs  the  Chair  that  it 
has  only  gone  to  the  Committee  of  the  Whole  to  be  considered 
there. 


August  io.]  CONSTITUTIONAL  CONVENTION.  311 

Mr.  Goodelle,  from  the  Committee  on  Suffrage,  to  which  was 
recommitted  the  proposed  constitutional  amendment,  introduced  by 
Mr.  Hill  (introductory  No.  183),  entitled,  "  Proposed  Constitutional 
amendment  to  amend  section  5  of  article  2  of  the  Constitution,  relat- 
ing to  the  manner  of  elections,"  reports  in  favor  of  the  passage  of 
the  same,  without  amendment.  ? 

Mr.  .Moore  —  I  ask  that  the  amendment  be  read. 

The  Secretary  read  the  amendment. 

Mr.  Goodelle  —  Perhaps  I  should  say  that  this  proposed  consti- 
tutional amendment  is  a  proposed  constitutional  amendment  that 
has  been  and  is  now  in  the  Committee  of  the  Whole,  has  been 
before  the  Convention  and  several  amendments  proposed  and 
referred  back  to  the  Committee  on  Suffrage.  The  Committee  on 
Suffrage  have  reported  it  back  now  in  its  original  form,  adopting 
none  of  the  amendments,  and  it  stands  precisely  as  it  stood,  leaving 
it  on  general  orders,  as  it  was  when  referred  back  to  the  Committee 
on  Suffrage. 

The  President  pro  tern. —  If  there  is  no  objection,  the  proposition 
will  retain  its  place  on  general  orders. 

Mr.  Foote  —  I  desire  to  offer  at  this  time  a  resolution. 

The  President  pro  tern. —  The  Secretary  will  read  the  resolution. 

The  Secretary  read  the  resolution  as  follows: 

R.  1 68. —  Resolved,  That  four  additional  members  be  added  to 
the  Committee  on  Revision  and  Engrossment. 

Resolved,  That  such  committee  be  authorized  to  have  all  engross- 
ing don£  by  typewriting. 

Mr.  Foote  —  It  is  evident  that  the  work  to  fall  to  the  Committee 
on  Revision  and  Engrossment  from  this  time  on  will  be  consider- 
able. That  committee,  as  now  constituted,  consists  of  only  seven 
members.  We  believe  that,  in  view  of  the  importance  and  volume 
of  its  work,  the  number  should  be  increased.  We  also  believe  that, 
in  the  interest  of  the  accuracy  of  its  work,  its  reports  to  the  Con- 
vention should  be  in  typewritten  form.  Hence  the  resolution 
submitted. 

The  President  pro  tern,  put  the  question  on  the  resolution,  and  it 
was  determined  in  the  affirmative. 

Mr.  Abbott  —  Doesn't  that  necessarily  go  to  the  Committee  on 
Rules  under  the  rules  of  the  House? 

The  President  pro  tern. —  Not  necessarily  to  the  Committee  on 
Rules.  The  Convention  have  it  in  their  power  and  are  themselves  a 
Committee  on  Rules. 


312  REVISED  RECORD.  [Friday, 

Mr.  E.  R.  Brown,  from  the  Select  Committee  on  Further  Amend- 
ments, to  which  was  referred  the  proposed  constitutional  amend- 
ment, introduced  by  Mr.  A.  H.  Green  (introductory  No.  374),  enti- 
tled "  Proposed  constitutional  amendment  to  amend  article  8  of  the 
Constitution,  in  relation  to  the  reports  of  public  officers,"  reports 
that  the  same  has  been  found  to  refer  to  the  subject  already  under 
consideration  by  the  Committee  on  State  Finances  and  Taxation, 
and  has,  therefore,  been  transmitted,  without  printing,  directly  to 
said  committee  for  its  information,  under  rule  73. 

Mr.  A.  H.  Green  —  I  now  renew  my  motion  to  have  that  amend- 
ment transferred  to  the  Committee  on  State  Finances. 

The  President  pro  tern. —  It  will  take  that  course. 

Mr.  Francis  —  The  chairman  of  the  Committee  on  Preamble 
and  Bill  of  Rights  requests  that  the  committee  be  discharged  from 
the  further  consideration  of  proposed  constitutional  amendment  No. 
365*  (printed  No.  377),  introduced  by  Mr.  Church,  and  that  it  be 
referred  to  some  appropriate  committee.  It  is  to  amend  article  6  by 
adding  thereto  a  new  section. 

The  President  pro  tern. —  Mr.  Francis  will  please  send  that  report 
to  the  desk.  The  Secretary  will  read  it. 

The  Secretary  read  the  report  as  follows: 

"  The  chairman  of  the  committee  requests  that  that  committee 
be  discharged  from  the  further  consideration  of  proposed  constitu- 
tional amendment  No.  365  (printed  No.  377),  introduced  by 
Mr.  Church,  and  that  it  be  referred  to  some  appropriate  committee." 

The  President  pro  tern. —  The  question  is  on  agreeing  with  the 
report  of  the  Committee  on  Preamble  and  Bill  of  Rights  as  to  pro- 
posed constitutional  amendment  No.  365  (printed  No.  377),  and  dis- 
charging that  committee  from  the  further  consideration  of  that 
proposition  by  referring  it  to  the  appropriate  committee.  If  there 
be  no  objection  it  will  be  referred  to  the  Judiciary  Committee. 
There  being  none  it  is  so  referred.  Unfinished  business  of  general 
orders.  The  Secretary  will  call. 

The  Secretary  called  the  general  orders  as  follows: 
General  order  No.  6,  introduced  by  Mr.  Alvord,  to  amend  sec- 
tion 7  of  article  7,  relating  to  Salt  Springs. 

Not  moved. 

Mr.  Cochran  —  Mr.  President,  my  recollection  is  that  the  city 
article  was  made  a  special  order  for  this  morning,  to  go  at  the  head 
of  the  calendar. 


August  10.]  CONSTITUTIONAL  CONVENTION.  313 

The  Secretary  called  general  order  No.  5,  report  of  Special  Com- 
mittee on  Transfer  of  Land  Titles. 

Not  moved. 

General  order  No.  7,  introduced  by  Mr.  Rolls,  relative  to  enforc- 
ing the  duty  of  voting. 

Not  moved. 

General  order  No.  14,  introduced  by  Mr.  Mereness,  to  amend 
article  3  relating  to  public  officers. 

Mr.  Mereness  —  I  understand,  sir,  that  the  order  was  that  the 
cities  article  be  placed  at  the  head  of  general  orders  of  all  kinds. 

The  President  pro  tern. —  The  Chair  will  inform  the  gentleman 
that  this  is  unfinished  business.  We  have  not  arrived  at  the  regular 
calendar  of  general  orders. 

Mr.  Mereness  —  Isn't  this  general  orders? 

The  President  pro  tern. —  Unfinished,  as  well  as  any  other. 

Mr.  Cochran  —  Mr.  President,  my  recollection  is  that  we  did 
not  finish  the  report  of  the  Cities  Committee  by  any  means,  and, 
I  think,  it  takes  its  place  under  the  head  of  unfinished  general 
orders. 

The  Secretary  called  general  order  No.  16,  introduced  by 
Mr.  Vedder. 

Not  moved. 

General  order  No.  13,  report  of  the  Committee  on  Cities. 
Mr.  Jesse  Johnson  —  Mr.  President,  I  move  that  the  Convention 
go  into  Committee  of  the  Whole  on  general  order  No.  13. 

Mr.  Church  —  Mr.  President,  before  the  motion  to  go  into  Com- 
mittee of  the  Whole  is  put,  I  would  like  to  ask  Mr.  Johnson  to 
withdraw  the  motion  to  go  into  Committee  of  the  Whole  for  one 
moment. 

Mr.  Johnson  —  I  am  willing  to  do  so. 

Mr.  Church  —  I  desire  to  call  the  attention  of  the  President  to 
proposed  constitutional  amendment  No.  364  (printed  No.  377),  just 
reported  back  to  the  Convention  by  the  Committee  on  Preamble 
and  Bill  of  Rights.  The  reference  of  that  amendment  to  the  Com- 
mittee on  Preamble  and  Bill  of  Rights  was  evidently  a  mistake. 
The  amendment  was  referred  to  the  Special  Committee  and  by 
them  referred  in  the  ususal  way  to  the  Committee  on  Industrial 
Interests,  which  now  has  the  amendment  under  consideration.  I 
understand  that  it  is  now  referred  to  the  Judiciary  Committee. 


314  REVISED  RECORD.  [Friday, 

The  President  pro  tcm. —  The  Chair  would  inform  the  gentleman 
that  by  misunderstanding  that  reference  was  made.  Do  I  under- 
stand that  that  is  already  in  the  Committee  on  Industrial  Affairs? 

Mr.  Church  —  Yes,  sir,  and  is  being  considered  by  that 
committee. 

The  President  pro  tern. —  The  Secretary  will  so  note,  and  the 
reference  made  this  morning  will  be  changed  to  the  Committee  on 
Industrial  Affairs. 

Mr.  Jesse  Johnson  —  I  now  renew  my  rrtotion. 

President  Choate  resumed  the  chair. 

The  President  —  Mr.  Root  from  the  Committee  on  Rules  offers 
the  following  report: 

Mr.  Bowers  —  May  I  ask  what  order  of  business  we  are  under? 

The  President  —  The  order  of  business  —  Mr.  Steele  has  the 
Convention  gone  into  Committee  of  the  Whole? 

Mr.  Steele  informs  me  that  a  motion  is  pending  to  go  into  Com- 
mittee of  the  Whole  on  the  report  of  the  Cities  Committee. 

Mr.  Root  —  Mr.  President,  I  am  instructed  by  the  Committee 
on  Rules  to  report  the  following  resolution: 

R.  169. —  Resolved,  That  after  August  fifteenth  sessions  of  the 
Convention  will  be  held  every  day  in  the  week,  except  Sunday,  and 
that  the  sessions  be  held  from  10  A.  M.  until  I  P.  M.,  from 
3  P.  M.  to  5  P.  M.,  and  from  8  P.  M.  to  10  P.  M.,  unless  otherwise 
specially  ordered  by  the  Convention,  except  that  no  session  shall 
be  held  on  Saturday  evening. 

I  am  instructed  to  say  that  one  member  of  the  committee  dissents 
from  this  report,  believing  that  there  should  be  a  qualification  to 
the  effect  that  no  final  vote  be  taken  on  either  Saturday  or  Monday, 
and  one  other  member  dissents  from  the  report,  believing  that  there 
should  be  no  session  on  Monday  afternoon  until  the  evening. 

The  President  —  This  resolution,  reported  by  the  Committee  on 
Rules,  is  open  for  consideration. 

Mr.  Cochran  —  Mr.  President,  I  desire  to  move  an  amendment 
that  this  Convention  sit  but  five  days  in  the  week,  and  that  on 
Monday  we  meet  at  8  P.  M.  and  adjourn  on  Friday  at  the  close  of 
the  afternoon  session. 

Since  the  opening  of  this  Convention  I  have  endeavored,  sir,  to 
attend  faithfully  to  all  the  duties  of  my  position  as  a  delegate, 
and  I  feel,  sir,  that  with  others  of  this  Convention,  who  have 
also  faithfully  attended  to  their  duties,  we  might  have  been 
consulted,  with  reference  to  what  sessions  we  should  hold.  If 


August  10.]  CONSTITUTIONAL  CONVENTION.  315 

there  had  been  any  intention  upon  the  part  of  any  delegate  or 
delegates  to  obstruct  the  business  of  this  Convention,  the  members 
of  the  majority  party  might  have  been  justified  in  going  into  a  cau- 
cus to  determine  what  days  we  should  sit.  But  I  submit,  sir,  that 
while  we  are  all  attending  to  our  duties  here,  we  are  entitled  to  be 
consulted  before  any  caucus  is  held  which  will  bind  the  votes  of 
members  as  to  what  days  we  shall  sit  in  this  body.  I  have 
endeavored  to  learn  why  this  matter  should  be  brought  up  in  a 
caucus  of  certain  members  of  this  Convention  before  it  was  sub- 
mitted to  a  vote  here,  and  I  am  forced  to  the  conclusion  that  it 
is  because  it  is  an  unjust  rule;  that  they  sought  to  bind  the  votes 
of  members  so  that  when  it  came  into  the  Convention  they  could 
not  vote  according  to  the  dictates  of  their  consciences.  We  are 
not  and  have  not  been,  since  the  opening  of  the  Convention,  sitting 
here  and  devoting  out  time,  as  we  should,  to  its  business.  There 
are  members  of  this  Convention  that  leave  this  hall  at  I  o'clock 
and  do  not  do  anything  until  8  o'clock  in  the  evening.  They 
do  not  do  any  of  the  committee  work.  Why  can't  we  meet 
earlier  in  the  morning  and  meet  in  the  afternoon,  and  meet 
earlier  in  the  evening  and  stay  later?  I  have  never  voted  for  an 
adjournment  since  I  have  been  here  and  I  never  will.  I  submit,  sir, 
that  the  days  we  are  here  we  should  devote  fully  to  the  business 
of  the  Convention,  but  we  should  not  be  brought  here  on  days  that 
we  cannot  faithfully  give.  We  owe  a  duty  to  the  State  to  attend 
to  the  business  of  this  Convention,  but  we  also  have  a  duty  that  we 
owe  to  ourselves.  There  are  members  of  this  Convention  who 
must,  of  necessity,  return  to  see  that  their  business  and  their  families 
are  kept  in  proper  order  and  condition,  and,  I  submit,  sir,  that  we 
should  not  at  this  time  adopt  a  rule  that  will  keep  the  members  in  • 
this  city  from  now  until  the  Convention  adjourns.  If  we  adopt  the 
rule  which  is  reported  here  by  the  Committee  on  Rules,  it  will  be 
almost  impossible  for  members  to  leave  this  city  until  this  Conven- 
tion adjourns  on  the  fifteenth  of  September,  or  the  first  of  October, 
or  whenever  it  does,  and  I  submit,  sir  that  that  is  unfair,  and  I  offer 
the  .amendment  that  I  have  for  that  reason. 

vMr.  Moore. —  Mr.  President,  I  hope  the  members  of  this  Con- 
vention will  be  consistent  with  their  former  vote.  Sometime  ago 
when  this  matter  was  brought  up,  I  made  a  motion  that  we  sit  on 
Monday  evening,  as  the  Legislature  does,  and  the  Convention  voted 
me  down,  and  it  down,  by  a  large  majority,  and  I  hope  the  Conven- 
tion will  remember  their  attitude  upon  that  matter  and  vote  down 
this  resolution  of  Mr.  Cochran. 

Second  Vice-President  Steele  took  the  chair. 


3l6  REVISED  RECORD.  [Friday, 

Mr.  Choate  —  Will  the  Convention  lend  me  its  ear  for  five 
minutes  that  I  may  set  before  them  what  is  deemed  the  absolute 
necessity  for  the  rule  now  offered?  It  is  offered  by  those  who  have 
deemed  themselves,  in  large  measure,  responsible  for  the  conduct 
and  completion  of  the  business  of  the  Convention  within  the  time 
prescribed  by  law.  And  I  take  to  myself  a  large  share  of  the 
responsibility  in  having  initiated  and  brought  to  its  present  form 
this  resolution  in  the  discharge,  the  conscientious  discharge,  of  my 
duty  as  President  of  this  Convention.  In  the  first  place,  I  deem  it 
a  necessity  that  the  business  of  this  Convention  shall  be  concluded 
on  the  fifteenth  day  of  September,  as  prescribed  by  law,  in  justice 
to  the  people  of  this  State  who  will  have  but  seven  weeks  from 
that  time  to  the  day  of  election  on  which  it  is  to  be  passed  upon, 
to  learn  what  our  work  has  been,  to  consider  it  and  to  determine 
in  their  own  minds  whether  they  will  support  or  defeat  it.  We 
have  now  been  in  session  a  little  more  than  three  months.  The 
great  work  of  the  committee  has  been,  in  substance,  completed. 
There  now  remain  but  five  weeks  from  to-morrow  for  the  conclu- 
sion of  our  labors.  Everybody  acquainted  with  the  history  of  pre- 
vious Conventions  knows  perfectly  well  that,  at  least,  one  week  at 
the  end  must  be  taken  in  the  final  work  of  revision,  of  reading, 
of  final  consideration  of  the  actual  form  of  the  matter  to  be  sub- 
mitted to  the  people,  and  that  leaves  but  four  weeks  in  which  to 
perform  the  immense  labors  that  still  rest  upon  this  Convention  in 
bringing  the  substance  of  its  work  to  a  conclusion.  Four  weeks; 
twenty-four  days;  by  this  rule  prescribed,  seven  hours  a  day,  about 
one  hundred  and  sixty-four  hours  in  all,  for  the  consideration  of 
all  these  important  questions.  Only  three  amendments  to  the  Con- 
•stitution,  and  those  of  a  comparatively  trivial  character,  have  yet 
been  brought  to  the  order  of  third  reading,  and  those  now  lie  upon 
the  table  under  your  order  awaiting  the  further  conclusion  of  labors 
of  committees  in  respect  to  the  same  subjects  involved  in  them. 
Now  we  have  had  an  experience  in  this  present  week  of  the  amount 
of  discussion  absolutely  necessary  for  the  consideration  of  a  single 
important  subject,  of  a  single  important  amendment;  I  mean  that 
of  the  Committee  on  Cities.  That,  gentlemen,  is  only  one  of  six 
or  eight  subjects  of  grand  and  first-class  importance  which  are  yet 
to  be  considered.  The  reports  of  five,  six,  seven  or  eight  very 
important  committees  are  yet  to  be  received.  The  Convention  is 
not  in  possession  of  what  they  intend  to  propose.  In  my  judgment, 
take  it  for  what  it  is  worth,  it  is  an  absolute  impossiblity  for  the 
labors  of  this  Convention  to  be  completed  within  the  time  pre- 
scribed by  the  law,  unless  this  resolution  is  adopted  in  its  full  force 


August  10.]  CONSTITUTIONAL  CONVENTION.  317 

without  any  diminution.  I  know  how  inconvenient  it  is  to  every- 
body connected  with  the  Convention  —  to  nobody  more  than 
myself.  I  know  how  urgent  private  affairs  of  gentlemen  are.  In 
respect  to  most  of  them,  how  their  professional  duties  assumed,  if 
you  please,  before  the  formation  of  this  Convention,  press  upon 
them.  But  no  matter  for  that,  gentlemen,  we  have  undertaken  this 
duty.  We  are  bound  to  discharge  it,  and  we  owe  every  day  and 
every  hour  to  the  State,  and  it  is  my  conviction  that  we  shall  be 
false  to  our  duty,  if  we  now,  from  this  time  forward,  from  the  fif- 
teenth day  of  this  month,  do  not  give  up  ourselves  wholly  to  this 
work,  leaving  our  families  to  take  care  of  themselves  and  our  affairs 
to  take  care  of  themselves  and  our  clients  to  take  care  of  them- 
selves. We  have  taken  an  oath.  We  have  proceeded  leisurely. 
We  have  endeavored,  I  believe,  to  do  our  duty  up  to  this  time. 
But  now  comes  the  crowning  part  of  our  work;  the  consideration, 
the  final  framing,  the  decision  upon  each  of  these  important  ques- 
tions. Will  we  be  true  to  our  trust  or  not?  That  is  the  question, 
and  the  only  question  presented  by  this  resolution.  I  say,  let  us 
leave  everything  else  behind  and  devote  ourselves  to  the  discharge 
of  our  sworn  duties  here.  (Applause.) 

Mr.  Dickey  —  Mr.  President,  I  call  for  the  ayes  and  noes  upon 
this  question. 

Mr.  Maybee  —  Mr.  President  — 

Mr.  Dickey  —  I  give  way  to  Mr.  Maybee. 

Mr.  Maybee  —  Mr.  President,  I  hope  the  report  of  the  committee 
will  not  be  concurred  in.  If  the  sessions  proposed  for  Monday 
forenoon  and  Saturday  afternoon  should  be  eliminated  from  this 
resolution,  there  would  be  some  sense  in  the  proposition.  If  the 
report  of  the  committee  is  concurred  in  in  every  particular,  if  we 
are  to  have  these  extended  sessions,  beginning  early  Monday 
morning  and  lasting  until  Saturday  evening,  there  will  be  some 
more  funerals  to  attend.  I  do  not  believe  that  there  are  many 
members  in  this  Convention  whose  physical  endurance  is  equal  to 
the  strain  that  is  sought  to  be  put  upon  them.  Whoever  is  respon- 
sible for  the  present  condition  of  the  work  of  this  Convention  I 
do  not  know.  I  do  know  that,  at  least,  a  week  of  our  time 
has  been  taken  up  by  members  of  the  Convention  who  have 
simply  risen  to  their  feet  to  tell  us  how  valuable  our  time  was 
and  how  it  ought  not  to  be  wasted.  I  know  that,  at  least,  two 
weeks  of  the  time  of  this  Convention  have  been  spent  on  unimport- 
ant questions  of  printing  and  other  minor  matters,  immaterial 
wrangles  upon  minor  questions  that  ought  to  have  been  disposed  of 


3l8  REVISED  RECORD.  [Friday, 

with  comparatively  little  debate,  so  as  to  give  room  for  the  more 
important  subjects  that  demand  the  consideration  of  this  Conven- 
tion. But  where  the  responsibility  may  rest  for  the  present 
condition  of  our  work,  it  is,  perhaps,  now  useless  to  inquire.  It  is 
true  that  but  little  time  remains  for  us,  but  it  seems  to  me  that  a 
more  adequate  and  efficient  remedy  for  the  condition  of  affairs 
we  are  now  in  would  be  to  limit  debate  upon  the  subjects  that  will 
come  before  the  Committee  of  the  Whole.  It  is  apparent  that  the 
physical  endurance  of  the  delegates  is  not  adequate  to  the  strain 
that  is  sought  to  be  put  upon  them,  leaving  out  of  consideration 
the  demands  of  their  business,  the  demands  of  their  families,  and 
the  necessity  that  exists  for  many  delegates  to  be  at  home  over  Sun- 
day. This  report  might  be  modified  by  leaving  out  the  Monday 
forenoon  and  the  Saturday  afternoon  sessions,  and,  I  think,  in  that 
form  it  would  be  satisfactory  to  the  delegates,  but  in  the  form  it  is 
now  proposed  I  hope  it  will  not  be  concurred  in. 

Mr.  Blake  —  Mr.  President,  with  the  most  profound  respect  for 
the  judgment  and  opinion  of  our  illustrious  and  honored  President, 
I  am  still  constrained  to  say,  sir,  that  I  am  opposed  to  the  adoption 
of  this  rule.  I  do  not  think  that  any  real  necessity  exists  for  its 
adoption.  Nine-tenths  of  the  work  of  this  Convention  has  already 
been  done,  and  the  danger  is  that  the  members  may  lose  their 
heads  and  become  panic-stricken  and  stampeded  by  imagin- 
ary fears.  If  the  female  suffrage  question  can  be  disposed  of 
in  three  evening  sessions,  there  is  no  other  question  before  this 
body  that  will  occupy  an  equal  time,  and  I  believe  that  there  are 
not  five  subjects  to  come  before  this  Convention  that  will  occupy 
the  time  that  that  subject  has  occupied  in  discussion;  and,  I  believe, 
furthermore,  that  much  of  this  fear  is  founded  in  the  apprehension 
started  by  injudicious  statements  made  upon  the  floor  of  this 
Convention. 

I  confess  that  the  Convention  has  suffered  somewhat  by  injudic- 
ious and  ill-advised  utterances  upon  this  floor  —  statements  made 
by  gentlemen  actuated  by  the  best  of  motives  and  very  praise- 
worthy efforts,  in  the  main,  and,  doubtless,  actuated  by  the  desire 
to  stimulate  the  Convention  and  its  committees  to  greater  activity, 
who  have  declared  again  and  again  that  this  Convention  was  not 
faithfully  and  diligently  attending  to  the  purposes  and  objects  of  its 
creation;  and  that  the  work  was  not  progressing  with  sufficient 
speed.  Much  of  this  sort  of  talk  has  been  indulged  in,  Mr.  Presi- 
dent, and  I  think  it  was  altogether  thoughtless,  but  I  think  it  has 
affected  injuriously  the  reputation  of  this  Convention,  collectively 
and  individually.  The  representatives  of  the  public  press  here  have 


August  10.]  CONSTITUTIONAL  CONVENTION.  319 

accepted  these  utterances  for  the  truth,  as  they  well  might  do,  and 
they  have  given  them  the  widest  possible  publicity,  so  that  the 
Convention  did  for  a  time  suffer  in  the  public  esteem.  But, 
Mr.  President,  I  am  sure  every  gentleman  here  has  seen  in  the 
press  these  statements  that  the  Convention  frittered  away  its  time; 
that  it  accomplished  nothing;  that  it  adjourned  without  finishing  its 
work,  and  that  has  lowered  the  Convention  in  the  esteem  of  the 
public.  Now,  I  have  not  had  the  honor  of  being  a  member  of 
other  Constitutional  Conventions.  There  are  gentlemen  here  who 
have  been  members  of  the  previous  Constitutional  Convention,  and 
I  put  it  to  them  whether  this  Convention  will  not  successfully  com- 
pare with  it,  stand  the  test  of  comparison  in  the  amount  of  work 
which  has  been  accomplished  in  the  time  that  it  has  been  sitting 
here,  that  this  Convention  has  not  been  negligent  and  has  not  wasted 
its  time.  It  has  been  faithful  in  every  respect.  Every  gentleman 
knows  that  the  work  of  this  Convention  has  largely  been  done  in 
committees  and  they  have  endeavored  to  sift  from  the  large  amount 
of  chaff  introduced  here  (pardon  me,  gentlemen,  I  have  introduced 
some  of  that  chaff  myself,  it  seems,  in  the  judgment  of  the  Con- 
vention), the  few  grains  of  golden  wheat  to  be  submitted  to  the 
people  for  approval.  I  trust,  sir,  that  the  work  of  this  Convention 
will  not  fall.  I  trust,  sir,  that  it  will  stand  as  a  monument, 
which  will  endure  when  marble  and  brass  have  crumbled 
away;  that  it  will  stand  as  a  monument  of  the  diligence 
and  zeal  of  this  body;  but,  if  it  shall  fall,  let  it  not  be  stabbed 
to  death  by  libel  and  slander,  which  not  only  belittle  the  work  of 
this  Convention,  but  stabs  the  reputation  and  character  of  every 
member.  I  trust,  therefore,  that  the  members  of  the  press  here 
will,  at  least,  now  do  us  this  tardy  justice,  and  acknowledge  that 
this  Convention  has  been  engaged  from  the  first  to  the  last  in  the 
work  delegated  to  it  by  the  people  of  the  State.  Now,  sir,  is  there 
any  reason  why  we  should  impose  upon  ourselves  this  hardship? 
Why  may  we  not  sit  Monday  evenings  and  three  sessions  each  day 
for  four  days  additional?  We  are  swinging  from  one  extreme  to 
the  other.  Why,  we  might  have  sat  two  sessions  a  day  two  months 
ago.  The  Convention  did  not  deem  it  necessary.  Now  the  gentle- 
men are  losing  their  heads.  There  are  no  important  measures  to 
come  before  the  Convention,  in  my  judgment,  but  the  judiciary 
article,  and  the  apportionment  measure,  and  the  cities  amendment. 
There  is  not  one  that  may  not  be  discussed  in  two  sessions,  amply 
discussed.  Do  not  let  us  put  upon  ourselves  this  terrible  hardship 
without  any  necessity.  That  is  all  I  have  to  say,  Mr.  President. 
If  it  were  necessary  to  be  here  every  day  of  the  week,  I,  for  one, 


320  REVISED   RECORD.  [Friday, 

and  I  think  every  gentleman  in  the  Convention  would  sit  here;  but 
I  fail  to  see  the  necessity  for  it,  and  it  seems  to  me  that  we  may 
transact  the  business  and  transact  it  long  before  the  fifteenth  of 
September  by  sitting  here  four  days  in  the  week,  three  sessions  each 
day,  and  have  a  session  Monday  evening,  if  you  please.  Every 
gentleman  can  be  here  for  Monday  evening.  There  is  no  occasion 
for  keeping  ourselves  away  from  our  families  and  our  homes  with- 
out real  necessity. 

Mr.  Titus  —  Mr.  President,  I  hope  the  gentlemen  of  this  Con- 
vention will  stand  by  the  committee  in  this  rule  reported. 
(Applause.)  The  members  of  the  majority  of  the  Convention  are 
responsible  for  the  work.  They  have  the  chairmen  of  the  different 
committees  and  they  know  the  work  that  is  before  them,  and  I 
think  it  is  the  duty  of  the  minority  to  sit  here,  day  in  and  day  out, 
until  the  fifteenth  of  September,  but,  Mr.  President,  I  will  make  an 
amendment  to  the  amendment  that  I  think  will  satisfy  everyone 
here,  and  that  is  that  the  Monday  session  shall  commence  at  two 
o'clock.  That  gives  us  an  opportunity  to  be  with  our  families  on 
Sunday,  and  we  can  take  an  early  morning  train  and  be  here  at  two 
o'clock.  I  hope  the  gentleman  from  Kings  (Mr.  Cochran)  will 
accept  my  amendment,  and  I  call  for  the  previous  question. 

It  has  been  suggested  that  I  make  it  three  o'clock  on -Monday 
afternoon.  That  will  give  us  time  to  get  here. 

Mr.  Cassidy  —  Mr.  President,  the  previous  question  has  been 
moved. 

Mr.  Mulqueen  —  Mr.  President,  I  rise  to  a  point  of  order.  My 
point  of  order  is  that  the  gentleman  having  obtained  the  floor  to 
make  a  speech,  cannot,  while  obtaining  the  floor  for  that  purpose, 
make  a  motion  for  the  previous  question  which  will  deprive  other 
gentlemen  of  obtaining  the  floor  for  the  same  purpose. 

Mr.  Root  —  I  think  there  must  be  an  error  as  to  the  previous 
question  being  moved.  The  gentleman  from  Orange  (Mr.  Dickey) 
called  for  the  ayes  and  noes  on  the  main  question. 

The  President  pro  tern. —  The  Chair  is  informed  that  Mr.  Titus 
moved  the  previous  question. 

Mr.  Choate  —  I  appeal  to  Mr.  Titus  to  withdraw  his  motion. 
This  is  a  very  important  question,  and  I  think  everybody  should  be 
heard  upon  it. 

Mr.  Titus  —  Mr.  President,  I  withdraw  the  motion,  with  this 
explanation.  I  made  the  motion  in  order  to  get  to  business,  so  as 
not  to  fritter  away  our  time  on  this  rule. 


August  10.]  CONSTITUTIONAL  CONVENTION.  321 

Mr.  Cochran  —  With  the  permission  of  the  Convention,  I  will 
accept  the  amendment  of  the  gentleman  from  New  York,  and  make 
it  3  o'clock  on  Monday. 

Mr.  McKinstry  —  Mr.  President,  there  are  not  many  delegates 
here  who  come  so  many  miles  to  attend  this  Convention  as  I  do; 
not  one  who  will  be  more  inconvenienced  by  this  rule.  I  was  not 
present  at  the  caucus,  and  I  might  claim  that  I  was  not  bound 
by  its  action.  On  due  consideration  I  believe  the  committee  is 
right  and  I  hope  their  report  will  be  adopted.  There  are  not  many 
delegates  here  who  do  not  work  six  days  a  week  when  they  are  at 
home,  and,  if  they  can  do  that  at  home,  they  can  do  it  here.  If  it 
kills  anybody  or  exhausts  anybody,  it  can  be  changed.  Let  us  try 
it.  I  would  like  to  call  the  attention  of  the  Convention  to  the 
saving  clause  in  this  resolution,  and  that  is,  it  says,  "  unless  other- 
wise specially  ordered."  Now,  if  we  find  on  Saturday  morning  that 
our  work  is  so  advanced  that  a  session  is  not  necessary  Saturday 
afternoon  or  Monday  morning,  it  is  in  our  power  to  omit  these  days, 
but  let  us  have  the  standing  rule  as  it  is  reported. 

Mr.  Tekulsky  —  Mr.  President,  I  would  like  to  have  the  report 
read  with  the  amendment  attached  so  that  we  can- understand  it. 

The  Secretary  read  the  resolution  as  amended. 

Mr.  Cochran  —  I  did  not  say  no  session  after  3  P.  M.,  but  to 
adjourn  after  the  afternoon  session  on  Friday  whatever  time  that 
might  be.  It  might  be  5  o'clock.  In  other  words,  that  we  would 
hold  two  sessions  on  Friday. 

Mr.  Osborn  —  Mr.  President,  I  desire  to  second  the  principal 
motion  before  this  Convention,  and,  as  I  believe,  its  passage  to  be 
predestined  and  foreordained,  I  wish  to  make  a  few  remarks  of 
an  historical,  rather  than  of  a  practical  character.  Eleven  weeks 
ago  last  Tuesday  the  majority  of  this  body  announced  that  it 
assumed  the  exclusive  control  of  every  committee.  There  has  been, 
up  to  last  Tuesday,  no  report  submitted  to  this  Convention  and 
brought  up  for  its  consideration  on  any  one  of  these  principal  sub- 
jects for  the  business  of  the  Convention  outlined  in  the  admirable 
opening  address  of  our  President.  All  those  amendments,  which 
have  been  considered  in  the  Committee  of  the  Whole,  all  those 
which  have  not  had  adverse  action,  have  been  recommitted  to  the 
committee  from  which  they  emanated,  with  the  exception  of  three. 
The  negligence,  the  delay  of  the  committees  of  this  body  is  the 
responsible  causes  of  the  present  condition  of  our  business. 
I  believe,  Mr.  President,  that  the  time  is  scant  for  us  to  continue 
21 


322  REVISED   RECORD.  [Friday, 

our  business  and  to  conclude  it  within  the  time  fixed  by  law,  and, 
while  I  regret  that  we  find  ourselves  in  such  a  position  that  it  will 
be  necessary  for  us  to  consider  these  important  topics,  with  minds 
jaded  by  constant  effort,  I  believe  it  is  an  absolute  necessity.  And 
I  wish,  in  closing,  to  make  one  further  statement,  that  there  has 
been  no  dilatory  motion  arising  from  this  side  of  the  House;  that 
up  to  last  Tuesday  there  have  been  but  two  extended  speeches  aris- 
ing from  this  side  of  the  House,  and  that  those  two  speeches  were 
justified  by  obtaining' more  than  fifty-five  votes  in  this  Convention. 
The  responsibility  for  the  present  condition  of  affairs  does  not  rest 
with  us.  For  my  part  I  desire  to  go  on  and  assist  this  Convention 
in  every  possible  way,  but  I  think  that  it  should  go  on  the  records 
of  this  Convention  that  we  stand  here  to-day  without  having  taken 
a  part  in  what  was  declared  by  one  of  the  leading  members  of  the 
majority  of  this  body  to  be  the  position  of  our  members,  a  desire 
to  delay  and  obstruct  the  proceedings  of  the  Convention. 
(Applause.) 

Mr.  Smith  —  Mr.  President,  it  is  vain  to  cast  reflections  upon 
the  past.  I  am  ready  to  believe,  and  do  believe,  that  every 
member  of  this  Convention  has  acted  in  absolute  good  faith  in  the 
discharge  of  his  duties  as  a  delegate  to  this  body.  I  am  glad  of 
this  opportunity  to  commend  this  resolution  and  to  indorse  the 
remarks  of  the  President  upon  it,  in  respect  to  the  necessity  that  is 
now  pressing  upon  us.  I  doubt  not  that  there  are  members  of  the 
Convention  whose  business  interests  and  whose  duties  pertaining 
to  the  social  affairs  of  life  would  make  it  inconvenient  for  them  to 
attend  all  the  sessions  of  the  Convention  to  be  held  under  this  reso- 
lution ;  but  we  must  bear  in  mind  that  the  Convention  has  displayed 
great  liberality  in  granting  excuses.  If  any  gentleman  finds  that 
his  business  exigencies  or  the  duties  to  his  family  are  such  that  he 
must  be  away  he  can  be  excused,  the  consideration  of  the  subjects 
before  the  Convention  can  be  continued,  and  any  member  who  has 
not  been  present  can,  on  his  return,  read  the  debates  and  gather  up 
^  instantaneously  the  drift  of  the  arguments  that  have  been  presented 
on  the  matters  under  consideration.  It  is  not  necessary  that  every 
delegate  should  be  present  at  every  session.  We  have  about  one 
hundred  and  seventy  members.  I  believe  that  the  President  of 
this  Convention  could  appoint  a  committee  of  twenty-five  members 
who  could  revise  and  amend  the  Constitution  and  make  it  satis- 
factory to  the  people  of  the  State.  It  is,  of  course,  a  gratification 
to  every  member  to  be  present  and  participate  in  the  proceedings, 
but  he  does  participate,  in  his  absence,  by  his  study  and  his  reflec- 
tions upon  the  problems  before  us,  and  by  the  contributions  he 


August  10.]  CONSTITUTIONAL  CONVENTION.  323 

makes  on  his  return.  I  hope,  therefore,  Mr.  President,  that  the 
resolution  will  pass. 

Mr.  Crosby  —  I  rise,  sir,  to  speak  in  favor  of  the  report  of  the 
committee;  but  in  doing  so  it  seems  to  me  that  it  is  proper  to 
say,  as  a  member  of  the  majority  of  this  Convention,  that  so  far 
as  the  minority  upon  this  floor  is  concerned  and  their  action  in 
each  and  every  committee  of  which  I  am  a  member,  there  has 
been  no  apparent  organized  opposition  or  determination  to  delay 
the  business  of  this  body.  It  has  been  truly  said  that  the  com- 
mittees are  largely  responsible  for  the  delays  of  the  business  of  this 
Convention.  It  is  my  misfortune  to  be  a  member  of  a  committee 
(to  me  one  of  the  most  important  committees  of  this  Convention) 
that  has  to  do  with  the  fair,  just,  legal  and  equitable  distribution  of 
the  Legislature  throughout  the  State  of  New  York  and  the  prin- 
ciples upon  which  it  should  be  organized.  It  is  my  misfortune  that 
my  committee  has  not  prepared  a  report  —  is  not  ready  to  prepare 
a  report  —  and  as  the  business  goes  on,  when  the  fifteenth  day  of 
September  is  reached,  it  will  be  as  far  from  preparing  a  report  as  it 
is  to-day.  I  stand  here  insisting  that  with  the  tendency  to  discuss 
every  question  upon  the  floor  of  this  body  in  the  Committee  of  the 
Whole,  with  the  disposition  to  wear  out  this  Convention,  the  only 
relief  that  we  can  have  is  to  so  work  this  body  that  the  gentlemen 
that  are  making  the  long  speeches,  the  gentlemen  that  are  delaying 
the  reports  of  committees,  will  understand  that  the  only  relief  they 
can  get  is  to  get  down  to  straight,  honest  work,  and  then  we  can 
have  a  reasonable  time  to  adjourn  each  day  for  rest  and  recreation. 
I  hope  that  the  resolution  of  the  Committee  on  Rules  will  be 
adopted  unanimously.  (Applause.) 

Mr.  Griswold  —  Mr.  President,  as  one  of  the  minority  of  the 
committee  which  reported  this  resolution,  I  wish  to  say  that  I 
acquiesced  in  that  resolution  for  two  reasons:  one,  because  it  has 
seemed  to  me  for  some  time  that  it  was  an  absolute  necessity 
that  this  Convention  employ  all  the  time  at  its  disposal  in 
discharging  the  duty  which  we  were  sent  here  to  perform.  It  may 
be  inconvenient  and  we  probably,  all  of  us,  would  be  glad  if  we  could 
have  a  rest  on  Saturday  as  we  have  had  heretofore,  but  it  has  become 
an  absolute  necessity,  and  whatever  may  be  said,  I  predict  that  the 
result  and  time  will  show  that  we  have  no  time  to  spare  of  the 
working  days  that  are  left.  It  is  an  absolute  necessity  that  we 
stay  here  from  now  on. 

Another  reason  that  I  would  suggest  to  the  members  of  this  Con- 
vention belonging  to  the  party  that  I  belong  to  is  that  I  think  it  is 
reasonable  to  place  upon  the  majority  of  this  Convention  that  con- 


324  REVISED  RECORD.  [Friday, 

trols  it  the  responsibility,  and  at  the  same  time  we  should  put  no 
obstruction  upon  business.  I  propose  to  aid  them  to  the  extent 
of  my  power  in  presenting  a  Constitution  as  good  as  can  be  made 
by  this  Convention,  reserving  the  right,  however,  if  there  shall  be 
anything  partisan  about  it  and  that  I  think  is  wrong,  to  object  to 
that  when  the  time  comes.  I  am  in  favor  of  this  resolution  because 
it  is  a  resolution  of  necessity,  as  time  will  prove. 

Mr.  Gilbert  —  I  think,  Mr.  President,  that  there  has  been,  on 
the  part  of  this  Convention,  an  honest  and  an  earnest  purpose  to  do 
its  work  with  thoroughness  and  all  reasonable  dispatch.  I  have  had 
no  sympathy  whatever  with  the  criticisms  that  have  been  made 
upon  its  work.  I  believe  they  have  arisen  chiefly 

The  President  pro  tern. —  Will  the  gentleman  pause  for  a 
moment?  The  Chair  can  but  remark  to  the  Convention  that  it  is 
very  doubtful  to  the  Chair  who  is  addressing  the  Chair,  or  who 
is  talking  the  loudest  in  the  Convention.  As  the  Chair  understands 
this  matter,  it  is  a  very  important  subject  to  every  member  of  the 
Convention.  It  refers  to  the  honor  and  success  of  the  Convention, 
not  only  to  its  reputation  throughout  the  State,  but  to  the  expedition 
of  the  business  of  the  Convention.  It  is  no  more  than  courteous 
that  when  gentlemen  desire  to  have  their  opinions  heard,  they 
should  be  accorded  a  reasonable  freedom  from  every  disturbance  so 
that  they  can  be  heard.  Now  if  the  Convention  will  remain  in  its 
present  good  order,  the  gentleman  will  proceed.  Otherwise  I  will 
ask  the  gentleman  to  delay  until  the  Convention  is  ready  to  hear 
him.  The  gentleman  will  proceed. 

Mr.  Gilbert  —  What  I  have  said  about  the  character  of  the  Con- 
vention's work,  in  my  judgment,  applies  throughout  without  stop- 
ping at  any  lines  between  minority  and  majority.  I  heartily 
indorse  what  was  said  as  to  the  unobstructive  and  helpful  character 
of  the  work  done  by  the  minority.  Now,  Mr.  President,  I  myself 
have  serious  doubts  as  to  the  wisdom  of  pressing  the  work  of  the 
Convention  in  the  manner  proposed  by  this  resolution.  There  is  a 
limit  to  what  men  can  do.  We  have  reached  the  point  where  our 
decisive  work  is  to  be  done,  where  our  final  judgment  is  to  be  exer- 
cised, and  it  is  of  the  utmost  importance  that  our  judgments  should 
be  in  the  best  possible  condition  for  its  exercise.  Mr.  President,  I 
commend  and  sympathize  with  the  desire  on  the  part  of  this  Con- 
vention to  do  its  utmost  to  expedite  its  business  and  to  do  it  well. 
In  this  spirit  I  believe  that  this  resolution  has  been  offered.  I 
believe  it  is  offered  solely  for  the  purpose  of  getting  our  work 
done  at  the  earliest  practicable  moment  without  interfering  witk 


August  10.]  CONSTITUTIONAL  CONVENTION.  325 

its  quality.  I  believe  that  is  its  purpose.  I  differ  with  them 
as  to  the  propriety  of  holding  so  many  sessions,  but  I  am  will- 
ing to  subordinate  my  judgment  as  to  that  and  give  it  a  trial,  and 
if  the  trial  shall  prove  that  we  are  undertaking  to  work  too  many 
hours  a  day  in  the  Convention  and  leaving  too  little  time  for  study 
and  reflection  and  consultation  the  Convention  will  correct  the 
error,  and  if  those  who  are  with  me  are  in  error,  then  we  will  be 
corrected  too.  I  shall,  therefore,  support  the  resolution  as  it  comes 
from  the  committee. 

Mr.  Root  —  Mr.  President,  I  am  one  of  those  who  believe, 
although  the  gentleman  from  Dutchess  (Mr.  Osborn),  was  quite 
correct  in  saying  that  those  whom  he  calls  the  minority  upon  this 
floor  had  not  as  yet  been  obstructive,  there  is  no  occasion  for  his 
excusing  either  himself  or  his  associates,  because  the  gentlemen  of 
this  Convention  upon  both  sides  of  the  political  line  have  done 
faithful  and  effective  work  in  committee  and  in  Convention  since 
the  Convention  commenced.  I  believe,  sir,  that  the  committees  have 
faithfully  and  assiduously  prosecuted  their  work;  that  the  delays  in 
the  making  of  their  reports  have  been  solely  for  the  purpose  of 
endeavoring  to  faithfully  perform  their  duty,  in  reaching  a  unani- 
mous or  as  nearly  as  possible  a  unanimous  conclusion.  I  think 
their  time  has  been  well  spent  and  that  the  results  of  our  further 
deliberations  will  show  that  it  has  been  well  spent.  I  think  that 
these  remarks  apply  as  well  to  the  committee  to  which  the  gentle- 
man from  Delaware  (Mr.  Crosby)  belongs  as  to  any  other  committee 
of  this  Convention.  But,  sir,  the  question  now  is  on  the  adoption  of 
this  resolution  as  to  our  future  labors.  It  seems  to  me,  sir,  that 
there  has  been  a  full  expression  of  the  sentiment  of  the  members  of 
the  Convention  upon  that  subject,  and  I  hope  I  will  not  be  deemed 
as  unduly  cutting  off  debate  if  I  do  as  I  now  do,  move  the  previous 
question. 

The  President  Pro  tern,  put  the  question,  "  Shall  the  main  ques- 
tion now  be  put?  "  and  it  was  determined  in  the  affirmative. 

Mr.  Becker  called  for  the  ayes  and  noes  on  the  main  question, 
and  the  call  was  supported. 

'The  President  Pro  tern. —  The  question  is  on  the  amendment  of 
Mr.  Cochran,  as  amended  by  Mr.  Titus,  and  those  amendments 
follow  the  main  question. 

Several  members  asked  for  the  reading  of  the  amendment. 

The  President  pro  tern. —  The  Secretary  will  read  the  amendment. 
The  Chair  understands  that  there  is  but  one  amendment,  Mr. 


326  REVISED   RECORD.  [Friday, 

Cochran  having  accepted  the  amendment  of  the  gentleman  from 
New  York  (Mr.  Titus). 

Mr.  Holls  —  I  rise  to  a  point  of  order.  I  understand  the  ayes 
and  noes  were  only  called  for  on  the  main  question  and  not  on  the 
amendment. 

The  President  pro  tern. —  The  Chair  understands  that  the  amend- 
ment cannot  be  strangled  in  that  way.  The  amendments  that  were 
offered  followed  the  previous  question  by  a  rule  adopted  in  the 
Legislature  when  the  first  Vice-President  was  a  member  of  that 
body,  many  years  ago. 

Mr.  Holls  —  Cannot  we  have  the  vote  by  a  rising  vote? 

The  President  pro  tern. — That  is  at  the  option  of  the  Convention. 

Mr.  Veeder  —  Mr.  President,  it  has  been  the  understanding  about 
this  chamber  that  there  were  two  amendments  pending,  and  for  that 
reason  another  very  important  amendment,  which  my  colleague 
from  New  York  desires  to  offer,  has  not  been  submitted,  and  if  it  is 
the  ruling  of  the  Chair  that  but  one  amendment  is  now  pending,  I 
submit  that  we  have  been  misled  and  that  we  should  have  the 
opportunity  to  present  another  amendment,  which  I  think  is  of 
vital  importance,  for  if  this  Convention  determines  to  hold  con- 
tinuous sessions  and  proceed  with  business,  we  want  some  business 
before  us,  and  to  have  that  business,  we  must  have  committee 
reports. 

The  President  Pro  tern. —  The  gentleman  may  be  correct.  There 
is  possibly  another  amendment. 

Mr.  Veeder  —  What  is  the  situation  then? 

The  President  Pro  tcm. —  Who  was  the  gentleman  who  offered  the 
last  amendment? 

Several  members  —  Mr.  Titus. 

The  President  Pro  tern. —  That  was  accepted  by  Mr.  Cochran,  and 
it  becomes  a  part  of  Mr.  Cochran's  amendment.  There  is  only  one 
amendment  then  and  the  Chair  is  correct. 

Mr.  Veeder  —  I  desire  to  ask  permission  to  amend  further. 

The  President  Pro  tern. —  Too  late,  after  the  previous  question  has 
been  ordered,  and  especially  after  it  is  doubly  ordered  by  the  ayes 
and  noes  being  ordered. 

Mr.  Veeder  —  I  ask  unanimous  consent. 
Mr.  Acker  —  I  object. 

Mr.  Veeder  —  I  hope  the  gentleman  will  listen  to  me  one 
moment;  as  we  are  going  to  order  continuous  sessions  here  every 


August  ID.]  CONSTITUTIONAL  CONVENTION.  327 

day  to  do  nothing.  We  have  no  reports  here  from  committees. 
The  President  himself  says  the  matters  here  reported  are  trivial. 
Important  matters  are  kept  back. 

Mr.  Choate  —  Will  Mr.  Veeder  allow  me  to  correct  him  by 
stating  that  I  said  that  but  three  amendments  had  been  ordered  to 
a  third  reading,  and  those  were  of  a  comparatively  trivial  character. 

Mr.  Veeder  —  Well,  I  mean,  in  substance,  the  prevailing  charac- 
ter of  the  propositions  submitted  to  us  then. 

Mr.  Dean  —  I  rise  to  a  point  of  order. 

Mr.  Alvord  —  I  ask  permission  to  ask  the  Chair  whether  or  not 
we  are  under  the  operation  of  the  previous  question. 

The  President  Pro  tern. —  We  certainly  are. 

Mr.  Alvord  —  I,  therefore,  call  for  the  enforcement  of  the  usual 
order. 

Mr.  Veeder  —  I  am  endeavoring  to  convince  the  gentleman  why 
he  should  withdraw  the  previous  question. 

Mr.  Alvord  —  The  previous  question  has  been  ordered  by  the 
Convention  and  he  cannot  withdraw  it. 

Mr.  Veeder  —  Of  course,  whatever  the  gentleman  from  Onon- 
daga,  Mr.  Alvord,  says,  is  all  right;  but  is  it  not  in  order,  Mr.  Presi- 
dent, to  move  a  reconsideration  of  the  previous  question? 

The  President  Pro  tern. —  The  Chair  does  not  know  of  any  rule  by 
which  the  motion,  having  been  carried,  and  the  ayes  and  noes 
ordered,  can  be  reconsidered. 

Mr.  Veeder —  No,  no;  the  ordering  of  the  previous  question. 

The  President  Pro  tern. —  The  previous  question  has  not  been 
reconsidered. 

Mr.  Veeder  —  I  make  that  motion,  that  the  motion  adopting  the 
previous  question  be  reconsidered.  I  voted  for  it,  Mr.  President, 
believing  there  were  two  amendments  pending. 

The  President  Pro  tcm. —  The  Chair  is  of  the  opinion  that  the  gen- 
tleman is  in  error  as  to  his  views  with  respect  to  two  amendments 
and  in  the  understanding  of  them.  The  ayes  and  noes  having  been 
called  for,  the  Chair,  unless  overruled  by  the  Convention,  must  insist 
that  the  ayes  and  noes  must  be  called  on  the  amendment  as  it  stands 
before  the  Convention  at  this  moment.  The  Secretary  will  call  the 
ayes  and  noes  upon  the  amendment  of  Mr.  Cochran,  as  amended 
by  Mr.  Titus,  and  accepted;  and  the  Secretary  will  read  it,  so  that  the 
Convention  will  have  full  knowledge  of  what  it  is  voting  on. 


328  REVISED  RECORD.  [Friday, 

The  Secretary  again  read  the  amendment,  and  proceeded  to  call 
the  roll. 

Mr.  Titus  —  Mr.  President,  I  will  ask  to  be  excused  from  voting, 
and  briefly  state  my  reasons.  When  I  offered  this  amendment, 
which  was  accepted  by  the  gentleman  from  Kings,  my  amendment 
was  simply  to  amend  the  report  of  the  committee  by  making  it 
three  o'clock  on  Monday  instead  of  ten.  I  see  that  as  read  here  it 
is  not  as  I  intended  it  and  as  I  thought  the  motion  would  be  put. 
I,  therefore,  withdraw  my  excuse  and  vote  no. 

Mr.  Durnin  —  Mr.  President,  I  desire  to  ask  how  I  am  recorded. 

The  President  Pro  tern. —  Mr.  Durnin  is  recorded  in  the  affirmative. 

Mr.  Durnin  —  After  listening  to  the  speech  of  my  friend,  Mr. 
Titus,  in  whose  wake  I  followed,  I  desire  also  to  be  recorded  in  the 
negative. 

Mr.  Mulqueen  —  For  the  same  reason  I  ask  to  have  my  vote 
changed  from  the  affirmative  to  the  negative. 

Mr.  Deyo  —  I  understood  Mr.  Titus's  amendment  as  he  stated  it. 
I,  therefore,  wish  to  change  my  vote  from  the  affirmative  to  the 
negative. 

Mr.  Cochran  —  Mr.  President,  it  might  appear,  from  the  very 
scant  vote  this  amendment  has  received,  that  it  originated  in  my 
own  mind  and  was  not  supported  by  the  members  of  this  Conven- 
tion. I  desire  to  say,  however,  that  it  was  not  my  own  invention, 
but  was  the  united  effort  of  many  of  the  delegates  who  have  now 
changed  their  votes.  I  feel,  therefore,  sir,  perfectly  justified  in  ask- 
ing to  have  my  vote  changed  to  the  negative. 

Mr.  Schumaker  —  How  am  I  recorded,  Mr.  President? 

The  President  pro  tern. —  Mr.  Schumaker  is  recorded  in  the 
affirmative. 

Mr.  Schumaker  —  Well,  I  don't  wish  to  change  my  vote.  I  was 
asked  to  vote  that  way  by  my  friends,  and  I  am  going  to  stick  to  it. 
(Laughter.) 

Mr.  Cochran  —  Mr.  President,  if  I  may  have  the  indulgence  of 
the  Convention  one  moment  longer.  It  is  apparent  that  we  are 
only  wasting  time  by  having  a  roll  call,  and  I  ask  that  this  vote  be 
made  unanimous  in  favor  of  the  report  of  the  committee. 

The  Secretary  then  completed  .the  calling  of  the  roll,  with  the 
following  result : 

Ayes  —  Messrs.  Blake,  Chipp,  Jr.,  Deady,  Faber,  Fields,  Gibney, 


August  10.]  CONSTITUTIONAL  CONVENTION.  329 

Giegerich,  Herzberg,  Hotchkiss,  Jenks,  Kerwin,  Maybee,  Meyen- 
borg,  Parmenter,  Peabody,  Roche,  Rowley,  Schumaker — 18. 

Noes  —  Messrs.  Abbott,  Acker,  Ackerly,  Allaben,  Alvord,  Baker, 
Banks,  Barhite,  Barnum,  Barrow,  Becker,  Bigelow,  Bowers,  E.  A. 
Brown,  E.  R.  Brown,  Burr,  Cady,  Carter,  Cassidy,  Church,  G.  W. 
Clark,  H.  A.  Clark,  Cochran,  Coleman,  Cookinham,  Countryman, 
Crosby,  Danforth,  Davenport,  Dean,  Deterling,  Deyo,  Dickey, 
Doty,  Durfee,  Durnin,  Emmet,  Floyd,  Foote,  Forbes,  Francis, 
Andrew  Frank,  Augustus  Frank,  Fraser,  C.  A.  Fuller,  O.  A.  Fuller, 
Galinger,  Gilbert,  Gilleran,  Goeller,  A.  H.  Green,  Griswold,  Ham- 
lin,  Hawley,  Hecker,  Hedges,  Hill,  Hirschberg,  Holcomb,  Holls, 
Hottenroth,  Jacobs,  J.  Johnson,  Kinkel,  Lester,  Lincoln,  Lyon, 
Manley,  Mantanye,  Marks,  Marshall,  McClure,  McDonough,  Mcln- 
tyre,  McKinstry,  C.  B.  McLaughlin,  J.  W.  McLaughlin,  Mereness, 
Moore,  Morton,  Mulqueen,  Nichols,  Nicoll,  O'Brien,  Ohmeis, 
Osborn,  Parker,  Parkhurst,  Pashley,  Phipps,  Platzek,  Powell,  Pratt, 
Putnam,  Rogers,  Root,  Sandford,  Spencer,  Springweiler,  A.  B. 
Steele,  W.  H.  Steele,  T.  A.  Sullivan,  Tekulsky,  Tibbetts,  Titus,  C.  S. 
Truax,  Tucker,  Vogt,  Wellington,  Whitmyer,  Wiggins,  Williams, 
Woodward,  President  —  1 14. 

Mr.  Bowers  —  Has  the  vote  been  announced,  Mr.  President? 

The  President  pro  tern. —  One  hundred  and  fourteen  noes;  eigh- 
teen ayes.  The  amendment  is  evidently  lost. 

Mr.  Bowers  —  I  offer  an  amendment  to  the  resolution  as 
follows 

The  President  pro  tern. —  An  amendment  cannot  be  received  at 
present,  under  the  operation  of  the  ayes  and  noes  as  ordered  by  the 
Convention. 

Mr.  Bowers  —  Mr.  President,  I  make  this  point  of  order.  Rule 
57  says  that  the  yeas  and  nays  may  be  taken  on  any  question  when- 
ever so  required  by  any  fifteen  members.  The  ayes  and  noes  that 
were  ordered  to  be  taken  were  on  the  amendment  and  not  on  the 
original  question.  We  now  come  to  the  original  question,  and  I 
submit  that  it  is  in  the  hands  of  the  house  and  we  have  the  right 
to  offer  an  amendment. 

The  President  pro  tern. —  The  Chair  will  state  for  the  information 
of  the  gentleman  that  the  motion  for  the  ayes  and  noes  followed 
upon  the  motion  for  the  previous  question,  and  it  is  not  admissible. 

Mr.  McClure  —  The  motion  for  the  ayes  and  noes  preceded  the 
motion  for  the  previous  question. 

Mr.  Bowers  —  I  ask  unanimous  consent  to  offer  an  amendment. 


330  REVISED  RECORD.  [Friday, 

Mr.  Alvord  —  I  object. 

Mr.  Becker  —  I  rise  to  a  point  of  order.  The  previous  question 
having  been  ordered  neither  debate  nor  amendments  are  in  order. 

The  President  pro  ton. —  The  point  of  order  is  well  taken. 

Mr.  Bowers  —  I  appeal  from  the  decision  of  the  Chair,  that  the 
previous  question,  which  was  moved  on  the  amendment,  applies  to 
the  whole  question. 

The  President  pro  tern. —  The  decision  of  the  Chair  is  appealed 
from.  The  question  before  the  Convention  is,  "  Shall  the  decision 
of  the  Chair  stand  as  the  action  of  the  Convention?  " 

Mr.  McClure  —  I  rise  to  a  question  of  information.  Does  the 
Chair  make  this  ruling  on  the  theory  that  the  previous  question  was 
ordered  before  the  ayes  and  noes  were  called  for? 

The  President  pro  tern. —  Assuredly. 

Mr.  McClure  —  I  ask  the  question  because  I  want  to  call  the 
Chair's  attention  to  the  fact  that  Mr.  Dickey  called  for  the  ayes  and 
noes  long  before  Mr.  Root  called  for  the  previous  question.  There- 
fore, the  Chair  is  in  error. 

The  President  pro  tern. —  The  Chair  informs  Mr.  McClure  that 
the  ayes  and  noes  were  not  called  for  again  by  Mr.  Dickey;  that  he 
withdrew  and  did  not  renew  his  motion.  The  previous  question 
having  been  ordered,  is  positive  and  absolute,  and  the  question  on 
taking  the  previous  question  by  ayes  and  noes  having  been  ordered, 
that  also  is  positive  and  absolute,  and  the  Chair  has  no  other  way 
than  to  follow  the  rules  as  established  by  this  Convention.  If  there 
are  no  further  questions  to  be  asked  of  the  Chair,  the  Secretary  will 
call  the  roll  upon  the  question,  which  now  returns  to  the  original 
resolution  as  offered  by  the  chairman  of  the  Committee  on  Rules. 

Mr.  Bowers  —  Mr.  President,  it  is  in  accordance  with  the  pro- 
cedure which  forbids  an  opportunity  to  present  amendments,  that 
the  Chair  should  overlook  the  fact  that  an  appeal  had  been  taken 
from  its  decision.  At  the  same  time,  I  do  desire  to  say  that  I  did 
appeal  from  the  decision  of  the  Chair. 

The  President  pro  tern. —  The  gentleman  is  correct.  The  Chair 
was  in  error  for  a  moment. 

The  President  pro  tern,  then  put  the  question  on  sustaining  the 
decision  of  the  Chair  upon  the  point  of  order  raised  by  Mr.  Bowers, 
and  it  was  determined  in  the  affirmative. 

The  Secretary  then  proceeded  to  call  the  roll  on  the  adoption  of 
the  resolution  offered  by  the  Committee  on  Rules. 


August  10.]  CONSTITUTIONAL  CONVENTION.  331 

Mr.  Bigelow  —  Mr.  President,  I  desire  to  be  excused  from  voting 
for  the  present,  and  I  will  state  my  reasons.  We  have,  from  the 
President  of  the  Convention  and  the  chairman  of  the  Committee  on 
Rules  a  report  that  this  is  a  question  of  urgency.  There  is  no  man 
in  this  Convention,  probably,  who  is  in  a  position  to  know  so  much 
of  the  condition  of  our  business  as  its  presiding  officer,  from  the 
nature  of  his  position.  There  is  no  reason  why  we  should 
assume  or  presume  that  he  has  been  disposed  to  exaggerate  the 
urgency  in  this  case.  Therefore,  as  he  and  his  friends  are  perhaps 
more  responsible  for  the  result  of  our  deliberations  and  the  success 
of  this  Convention,  than  others,  he  is  entitled  to  have  his  wishes 
gratified  in  this  matter,  and  I  think  that  it  is  the  duty  of  every  man 
in  this  Convention  to  support  his  call.  If,  after  a  few  days,  or  a 
week  or  more,  we  find  our  business  has  progressed  to  such  a  degree 
that  we  can  relax  our  efforts,  it  is  always  in  our  power  to  stop. 
I  for  one  always  prefer  to  have  my  business  before  me  rather  than 
behind  me;  and  when  we  find  we  have  leisure  for  Saturdays  and 
Mondays,  we  are  in  a  position  to  take  it.  Meantime,  let  us  get  our 
business  in  such  a  state  that  no  one  will  be  afraid  of  being  crowded 
during  the  later  days  of  the  Convention.  I  withdraw  my  excuse  and 
vote  aye. 

Mr.  Blake  —  Mr.  President,  I  desire  to  be  excused  from  voting, 
and  will  give  my  reasons.  I  do  not  change  my  views  at  all  as  I 
expressed  them  a  few  moments  ago,  and  I  believe  that  time  will 
justify  them;  but  in  deference  to  the  judgment  of  the  Convention, 
which  seems  to  be  overwhelming,  I  yield  to  that  judgment,  and  I 
withdraw  my  request  to  be  excused  from  voting  and  vote  aye. 

Mr.  Cochran  —  Mr.  President,  the  army  of  the  amenders  is  evi- 
dently so  badly  rattled  and  running  so  fast  that  I  am  sure  I  cannot 
withstand  the  storm,  and  I  shall  have  to  go  with  them,  sir,  and  vote 
aye,  in  favor  of  this  report. 

The  Secretary  then  completed  the  roll  call,  with  the  following 
result: 

Ayes  —  Messrs.  Abbott,  Acker,  Ackerly,  Allaben,  Alvord,  Baker, 
Banks,  Barhite,  Barnum,  Barrow,  Becker,  Bigelow,  Blake,  Bowers, 
E.  A.  Brown,  E.  R.  Brown,  Burr,  Cady,  Campbell,  Carter,  Cassidy, 
Church,  G.  W.  Clark,  H.  A.  Clark,  Cochran,  Coleman,  Cookinham, 
Danforth,  Davenport,  Deady,  Dean,  Deterling,  Deyo,  Dickey, 
Doty,  Durfee,  Durnin,  Emmet,  Faber,  Fields,  Floyd,  Foote,  Fran- 
cis, Andrew  Frank,  Augustus  Frank,  Frazer,  C.  A.  Fuller,  O.  A. 
Fuller,  Galinger,  Gibney,  Gilbert,  Gilleran,  Goeller,  A.  H.  Green, 
Griswold,  Hamlin,  Hawley,  Hedges,  Herzberg,  Hill,  Hirschberg, 


332  REVISED  RECORD.  [Friday, 

Holcomb,  Holls,  Hotchkiss,  Hottenroth,  Jacobs,  Kerwin,  Kinkel, 
Lester,  C.  H.  Lewis,  M.  E.  Lewis,  Lincoln,  Lyon,  Manley,  Man- 
tanye,  Marks,  Marshall,  McArthur,  McClure,  McDonough,  Mcln- 
tyre,  McKinstry,  C.  B.  McLaughlin,  J.  W.  McLaughlin,  Mereness, 
Moore,  Morton,  Nichols,  Nicoll,  Nostrand,  O'Brien,  Osborn,  Par- 
ker, Parkhurst,  Pashley,  Phipps,  Platzek,  Porter,  Powell,  Pratt, 
Putnam,  Rogers,  Root,  Rowley,  Sandford,  Schumaker,  Smith, 
Spencer,  Springweiler,  A.  B.  Steele,  W.  H.  Steele,  T.  A.  Sullivan, 
Tekulsky,  Tibbetts,  Titus,  Towns,  C.  S.  Truax,  Tucker,  Vogt,  Whit- 
myer,  Wiggins,  Williams,  Woodward,  President — 124. 

Noes  —  None. 

President  Choate  resumed  the  Chair. 

Mr.  Burr  offered  the  following  resolution,  which  was  read  by  the 
Secretary : 

R.  170. — "  Resolved,  That  the  chairman  of  each  committee  report 
on  the  1 6th  of  August  as  to  the  condition  of  the  business  before  it, 
and  be  required  to  report  upon  the  business  before  such  committee 
on  or  before  the  2ist." 

The  President  —  Unless  objection  is  made,  the  question  will  be 
on  the  consideration  of  Mr.  Burr's  resolution. 

Mr.  Acker  —  I  object. 

The  President  —  Will  the  Convention  allow  the  Chair  to  state 
that  this  seems  to  be  an  exceedingly  proper  resolution,  calling  for 
information  to  the  Convention  which  it  ought  to  have,  and  to 
express  the  hope  that  the  objection  will  be  withdrawn. 

Mr.  Acker  —  I  will  withdraw  it. 

The  President  —  Objection  being  withdrawn,  Mr.  Burr's  resolu- 
tion is  open  for  consideration. 

Mr.  Burr  —  Mr.  President,  it  would  probably  have  been  more 
strictly  in  proper  order  of  procedure  if  before  adopting  the  resolu- 
tion which  has  just  been  adopted  we  had  inquired  as  to  the  business 
now  before  the  House,  and  had  this  report  which  I  have  called  for 
by  this  resolution  before  the  House,  before  setting  the  time  for  the 
sessions;  but  it  having  been  set,  and  the  time  and  the  days  having 
been  designated  for  the  continuance  of  the  business  of  the  Conven- 
tion, it  seems  to  me  incumbent  upon  us  to  hasten  the  work  of  the 
committees ;  and,  for  that  reason,  I  think  it  is  proper  to  call  upon  the 
chairmen  of  committees  to  report  as  to  the  existing  condition  of  the 
business  before  them,  and  that  they  be  requested  to  report  in  full 
upon  their  business  on  or  before  the  2ist. 


August  10.]  CONSTITUTIONAL  CONVENTION.  333 

Mr.  Bowers  —  Mr.  President,  I  offer  as  an  amendment  to  that, 
that  all  standing  committees  make  final  report  on  or  before  the  2oth 
of  August.  I  do  not  see  any  reason  for  taking  up  time  in  making 
reports  on  the  condition  of  business.  I  think  all  the  Convention 
needs  is  to  get  the  reports  in  before  the  2Oth,  so  that  we  shall  be  in 
condition  to  act  upon  them. 

The  President  —  The  Chair  understands  the  substance  of  your 
amendment  to  be  already  embodied  in  Mr.  Burr's  resolution.  The 
Secretary  will  read  that  resolution. 

The  Secretary  read  the  resolution. 

Mr.  Bowers  —  The  word  "  finally  "  report  is  what  I  wish  in. 

Mr.  Burr  —  I  accept  the  suggestion  of  the  word  "  final." 

Mr.  Hirschberg  —  I  wish  to  amend  the  resolution  by  substituting 
the  1 8th  for  the  2ist,  a  week  from  to-morrow,  so  as  to  have  the 
reports  next  week. 

Mr.  Burr  —  I  cannot  accept  that,  because  I  do  not  believe  the 
chairmen  will  have  time  in  which  properly  to  present  the  business 
before  them  to  the  Convention. 

Mr.  Hirschberg  —  By  adopting  the  i8th,  reports  may  be  printed 
and  may  be  ready  for  the  next  week. 

The  President  then  put  the  question  on  the  amendment  offered 
by  Mr.  Hirschberg,  requiring  final  reports  to  be  made  on  the  i8th, 
and  it  was  determined  in  the  negative. 

The  President  —  The  question  now  is  on  the  resolution  as  offered 
by  Mr.  Burr.  The  Chair  will  state  that,  of  course,  this  resolution 
will  assume  that  anything  that  it  is  not  possible  to  hand  in  on  the 
2  ist,  will  be  received  afterwards. 

Mr.  Alvord  —  Mr.  President,  I  am  in  favor  of  the  general  pur- 
port of  this  resolution,  but  I  think  that  we  had  better,  under  the 
excitement  in  which  we  are  placed  at  present,  agree  to  some  delay. 
If  I  make  a  motion  to  lay  this  resolution  for  the  present  on  the 
table,  I  pledge  myself,  if  any  gentleman  here  desires  me  to,  that  I 
will  move  upon  the  incoming  of  the  Convention  next  week,  at  the 
earliest  possible  opportunity,  to  vote  that  it  be  taken  from  the  table. 
I,  therefore,  sir,  under  these  circumstances,  move  that  it  do  for  the 
present  lie  on  the  table. 

The  President  put  the  question  on  the  motion  of  Mr.  Alvord  to 
lay  upon  the  table,  and  it  was  determined  in  the  negative. 

The  President  —  The  question  is  upon  the  resolution. 

Mr.  Bowers  —  May  we  have  it  read  again? 


334  REVISED  RECORD.  [Friday, 

The  Secretary  again  read  the  resolution,  as  amended  by  the 
proposition  of  Mr.  Bowers. 

"  Resolved,  That  the  chairman  of  each  committee  report  on  the 
i6th  of  August  as  to  the  condition  of  the  business  before  it,  and  be 
required  to  finally  report  upon  the  business  before  such  committee 
on  or  before  the  2ist." 

The  President  then  put  the  question  on  the  adoption  of  the 
resolution,  and  it  was  determined  in  the  affirmative. 

Mr.  M.  E.  Lewis  —  Mr.  President,  at  the  time  of  the  presentation 
of  the  report  of  the  Committee  on  Rules  this  morning,  a  motion  was 
pending  that  the  Convention  go  into  Committee  of  the  Whole  upon 
the  report  of  the  Cities  Committee. 

The  President  —  That  is  now  the  question  before  the  House. 

Mr.  Lewis  —  I  was  going  to  suggest,  Mr.  President,  that  instead 
of  taking  up  that  report  at  this  late  hour  of  the  day,  the  matter  of 
the  report  of  the  Cities  Committee  be  made  a  special  order  for 
Tuesday  morning,  immediately  after  the  reading  of  the  Journal. 

Mr.  J.  Johnson  —  I  second  that  motion. 

Mr.  Tekulsky  —  I  hope,  sir,  that  that  motion  will  not  prevail. 
We  are  here  now,  and  let  us  do  our  work.  This  matter  was  made 
a  special  order  for  this  morning,  and  I  hope  the  gentlemen  that  are 
here  will  stop  here  and  get  through  with  that.  We  have  now  had 
it  for  a  week  before  us,  and  the  sooner  we  get  through  with  it  the 
better. 

The  President  —  That  will  require  a  two-thirds  vote. 

The  question  was  then  put  on  Mr.  Lewis's  motion,  and  it  was 
determined  in  the  negative,  by  a  standing  vote  —  44  to  28. 

Mr.  M.  E.  Lewis  —  I  move  that  the  Convention  do  now  go  into 
Committee  of  the  Whole  upon  the  report  of  the  Cities  Committee. 

Mr.  Holcomb  —  I  move  that  the  Convention  do  now  adjourn. 

The  President  put  the  question  on  the  motion  to  adjourn,  and  it 
was  determined  in  the  negative. 

The  President  then  put  the  question  on  the  motion  of  Mr.  Lewis, 
that  the  Convention  go  into  Committee  of  the  Whole,  and  it  was 
determined  in  the  affirmative. 

The  President  —  In  the  absence  of  Mr.  I.  S.  Johnson,  of 
Wyoming,  who  was  in  the  chair  on  that  amendment,  Mr.  Lincoln 
will  please  take  the  chair. 

The  President  would  report  as  the  gentlemen  added  to  the  Com- 


August  10.]  CONSTITUTIONAL  CONVENTION.  335 

mittee  on  Revision  and  Engrossment,  Mr.  Bowers,  Mr.  Durfee, 
Mr.  Deyo  and  Mr.  O'Brien. 
Mr.  Lincoln  in  the  chair. 

The  Chairman  —  Gentlemen  of  the  Committee  of  the  Whole,  the 
question  is  upon  the  report  of  the  Committee  on  Cities. 

Mr.  Choate  —  Mr.  Chairman,  before  Mr.  Becker  proceeds  with 
his  opening  remarks  or  whatever  else  was  before  the  committee,  I 
desire  to  state  that  by^gn  inadvertence  on  my  part,  in  the  amend- 
ment which  I  offered, **two-thirds  "  was  written  instead  of  "  three- 
fifths,"  as  I  intended  —  to  make  the  amendment  read  in  substance 
that  the  Legislature  might,  after  hearing  the  mayor,  if  he  assented, 
pass  a  law  in  reference  to  cities  by  a  majority  of  both  houses,  and  if 
he  dissented,  by  a  vote  of  three-fifths  of  the  members  of  both  houses. 
The  gentlemen  will  be  good  enough  to  correct  my  amendment  as 
printed,  changing  "two-thirds"  to  "three-fifths." 

Mr.  Becker  —  I 'had  intended,  Mr.  Chairman,  to  continue  a  little 
further  with  the  discussion  of  the  amendments  proposed  by  the 
Committee  on  Cities,  but  what  few  remarks  I  have  in  my  mind  on 
that  subject  can  be  postponed.  I  understand  that  Mr.  Bowers  is 
prepared  to  say  something  upon  the  subject  and  desires  to  be  heard. 
I  waive  my  right  to  the  floor  for  the  present,  in  order  to  enable  him 
to  take  the  question  up  if  he  so  desires. 

Mr.  Bowers  —  I  had  no  desire  to  speak  —  certainly  until  Mr. 
Becker  has  finished.  When  Mr.  Becker  has  finished  I  may  have 
something  to  say.  I  supposed  he  had  finished  yesterday. 

Mr.  Holcomb  —  Mr.  Chairman,  I  move  that  the  committee  rise, 
report  progress  and  ask  leave  to  sit  again. 

Mr.  J.  Johnson  —  I  would  like  to  learn  if  there  is  anyone  who 
desires  to  be  heard  in  committee  on  this.  The  Committee  on  Cities 
were  quite  willing  that  this  should  be  postponed  until  Tuesday. 
We  supposed  that  the  temper  of  the  House  would  not  be  favorable 
to  taking  it  up  at  this  hour.  As  it  has  insisted  that  it  be  taken  up 
at  this  hour,  I  think  the  debate  should  go  on.  If  there  is  no  one 
else  who  desires  to  be  heard,  the  members  of  the  committee  will  be 
heard. 

Mr.  Bowers  —  I  submit  that  the  gentleman  from  Brooklyn  has 
no  right  to  take  that  position.  I  understand  that  Mr.  Becker 
yielded  the  floor  temporarily.  Now,  if  Mr.  Becker  wants  to  go 
on 

Mr.  Dean  —  Mr.  Chairman,  I  rise  to  a  point  of  order  — 

The  Chairman  —  The  question  is  not  debatable.     The  question  is 


336  REVISED  RECORD.  [Friday, 

on  the  motion  that" the  committee  do  now  rise,  report  progress  and 
ask  leave  to  sit  again. 

The  Chairman  put  the  question  as  stated,  and  it  was  determined 
in  the  negative. 

Mr.  Becker  —  Mr.  Chairman,  I  had  no  intention  of  delaying  any- 
thing at  all.  I  merely  offered  to  yield  as  a  matter  of  courtesy,  as  I 
supposed,  and  I  am  perfectly  willing  to  complete  what  I  have  to  say 
on  this  subject. 

The  question  has  been  asked  in  this  Convention  by  many,  on  and 
off  the  floor  of  the  House,  why  it  was  that  the  committee  thought  it 
best  to  vest  not  only  the  power  of  removal,  but  also  the  power  of 
appointing  the  successor  of  the  head  of  a  police  department  so 
removed,  in  the  Governor.  As  I  understand  those  who  oppose 
these  measures,  they  concede  that  the  policy  of  the  State  has  been 
for  half  a  century  to  vest  in  the  Governor  the  power  of  removal  of 
certain  peace  officers,  such  as  sheriffs  and  district  attorneys,  and 
they  do  not  find  any  very  particular  fault  with  the  power  of  removal 
which  this  amendment  vests  in  the  Governor.  Indeed,  if  I  remem- 
ber correctly  —  and  I  trust  my  friends  from  New  York  will  take 
occasion  to  correct  me  if  I  am  not  right  about  it  —  under  the  Con- 
solidation Act  of  the  city  of  New  York,  the  power  to  remove  a 
police  commissioner  vested  in  the  mayor  is  even  now  subject  to  the 
approval  of  the  Governor.  Am  I  right  about  that,  Mr.  Hotchkiss? 

Mr.  Hotchkiss  —  Yes. 

Mr.  Becker  —  Mr.  Hotchkiss  says  I  am  right.  Now,  the  reason 
why,  after  considerable  discussion  of  this  question,  it  was  thought 
best  to  vest,  not  only  the  power  of  removal,  but  the  power  also  of 
appointing  a  successor  to  the  head  of  a  police  department,  in  the 
Governor,  was  a  very  simple,  and,  to  my  mind,  a  controlling,  reason. 
The  mayor,  under  the  present  provisions  of  the  Constitution  of  this 
State,  has  the  power,  unless  the  officers  are  to  be  elected  in  every 
city  of  this  State,  to  appoint  the  officers.  There  is  an  express  pro- 
vision that  all  officers  in  cities  and  in  towns  shall  be  elected,  or 
appointed  as  the  Legislature  may  prescribe,  by  the  local  authorities. 
Consequently,  the  power  is  in  the  mayor.  We  deemed  it  essen- 
tial—  not  for  the  purpose  of  preventing  any  particular  exhibition 
of  simian  characteristics  with  reference  to  Buffalo,  which  my  friend, 
Mr.  Hotchkiss,  has  termed  "  monkey,"  but  for  the  purpose  of  pre- 
venting monkeying  in  any  city  of  this  State;  for,  if  it  is  liable  to 
occur  in  one  place,  it  is  liable  to  occur  as  to  another.  If  one  party 
has  seen  fit  to  change  the  seat  of  power  of  appointment,  for  political 
purposes,  of  police  commissioner,  the  other  party  may  do  it.  And, 


August  10.]  CONSTITUTIONAL  CONVENTION.  337 

I  grieve  to  say,  that  the  party  of  which  I  am  a  member  did,  years 
ago  —  along  in  the  '8o's  —  summarily,  by  an  act  of  the  Legislature, 
which  was  approved  by  the  Governor,  remove  the  police  commis- 
sioners then  in  office,  and  provide  for  the  appointment  of  the  new 
ones.  The  police  commissioners  were  removed,  or  some  portion 
of  them,  a  majority  of  the  people  being  opposed  in  political  faith  and 
belief  to  the  party  in  power  in  the  Legislature;  and  that  action  was 
cited  by  the  Lieutenant-Governor  of  this  State,  who  engineered  the 
measure  through  the  Legislature  two  years  ago,  changing  the 
power  of  the  appointment  of  our  police  commissioners  at  Buffalo, 
as  a  reason  and  a  ground  for  his  taking  that  action.  It  was  openly 
stated  in  the  only  newspaper  —  and  it  happened  that  there  was  only 
one  in  the  city  of  Buffalo  that  supported  his  action,  or  pretended  to 
support  it  —  and  it  was  openly  stated  by  him  that  the  thing  had 
been  done  once  before  by  the  other  party,  and  he  proposed  to  have 
a  chance  at  it  now.  So  that  what  can  be  done  by  one  party  may  be 
done  by  another.  For  that  reason,  inasmuch  as  the  mayor  is 
elected  by  the  people ;  inasmuch  as  in  most  of  the  cities  of  this  State 
he  has  very  numerous  and  responsible  powers  of  appointment;  inas- 
much as  he  is  the  chief  executive  of  the  city,  and  is  one  whom 
the  people  can  hold  responsible  if  he  appoints  improper  officials,  the 
committee  thought  it  wise  to  vest  this  power  of  appointment  in 
him,  and  to  provide  in  set  terms  that  it  should  not  be  taken  away 
from  him.  Now,  I  do  not  take  it  that  my  friends  upon  the  other 
side  who  oppose  this  amendment,  particularly  the  portions  of  it 
which  I  have  discussed  relating  to  the  elections  and  police,  make 
any  very  special  objection  to  that.  Nor  do  I  think  if  they  do  make 
objection  to  it,  that  the  objection  can  be  well  founded.  The  chief  of 
police  should  be  apppointed  by  the  mayor.  Now,  then,  conceding 
that  proposition,  what  position  would  we  be  in  if  we  gave  the  power 
of  removal  to  the  Governor,  which  is  also  conceded  to  be  a  wise 
measure,  if  the  same  mayor  who  had  appointed  the  man  so 
removed  would  have  the  right  to  turn  around  as  soon  as  the 
Governor  had  made  his  removal  and  reappoint  the  same  police 
commissioner,  or  another  one  equally  obnoxious? 

Mr.  Doty —  Mr.  Chairman,  I  rise  to  a  point  of  order.  I  call  the 
attention  of  the  Chairman  to  the  fact  that  there  is  not  a  quorum  in 
the  chamber. 

The  Chairman  —  The  Clerk  will  count. 

Mr.  Mereness  —  Of  what  consequence  is  that  in  Committee  of 
the  Whole? 

22 


338  REVISED   RECORD.  [Friday, 

Mr.  M.  E.  Lewis  —  I  ask  for  the  calling  of  the  roll. 

Mr.  Mereness  —  I  make  the  point  of  order  that  no  call  of  the 
House  can  be  had  in  Committee  of  the  Whole,  and  the  only  way  to 
do  is  to  get  back  into  the  Convention. 

Mr.  Choate  —  Mr.  Chairman,  I  do  not  wish  to  impress  the  official 
rights  of  the  President  upon  the  Committee,  but  I  call  attention  to 
rule  28,  which  says  that  if,  at  any  time  when  in  Committee  of  the 
Whole,  it  be  ascertained  that  there  is  no  quorum,  the  Chairman 
shall  immediately  report  the  fact  to  the  President,  who  then  takes 
the  chair  for  the  purpose  of  securing  a  quorum.  It  seems  to  be 
the  duty  of  the  Chairman  first  to  ascertain  whether  there  is  a 
quorum  or  not. 

The  Chairman  —  For  that  purpose  I  directed  the  Secretary  to 
count,  to  ascertain  whether  there  was  a  quorum  present  or  not. 

The  Secretary  reports  that  there  is  not  a  quorum  present. 

President  Choate  resumed  the  chair. 

Mr.  M.  E.  Lewis  —  I  move  that  a  call  of  the  House  be  had. 

The  President  —  Before  the  call  of  the  House  is  ordered,  the 
Sergeant-at-Arms  is  directed  to  summon  into  the  chamber  any 
member  who  may  not  be  within  at  present. 

Chairman  Lincoln  —  Mr.  President,  the  Convention  has  been  in 
Committee  of  the  Whole  upon  the  report  of  the  Committee  on 
Cities:  The  point  being  raised  that  a  quorum  of  the  Convention 
was  not  present,  it  was  ascertained  that  there  were  only  eighty 
members  of  the  Convention  present. 

The  President  —  The  Convention  has  heard  the  report  of  the 
Chairman  of  the  Committee  of  the  Whole.  The  President  will 
endeavor  to  procure  a  quorum  as  required  by  the  rules.  The 
Sergeant-at-Arms  will  please  perform  his  function  and  report  to  the 
House. 

The  Secretary  then  proceeded  to  call  the  roll,  when  the  following 
answered  to  their  names  as  being  present: 

Messrs.  Abbott,  Acker,  Ackerly,  Alvord,  Banks,  Barrow,  Becker, 
Blake,  Bowers,  E.  R.  Brown,  Burr,  Cady,  Cassidy,  Chipp,  Jr., 
H.  A.  Clark,  Cochran,  Countryman,  Crosby,  Davenport,  Deady, 
Dean,  Dickey,  Doty,  Durfee,  Durnin,  Emmet,  Faber,  Floyd,  Foote, 
Francis,  Andrew  Frank,  Augustus  Frank,  Eraser,  Galinger,  Gibney, 
Giegerich,  Gilbert,  Gilleran,  Goeller,  Hamlin,  Hawley,  Hecker, 
Hedges,  Holcomb,  Holls,  Hotchkiss,  J.  Johnson,  Kerwin,  Kimmey, 
Kinkel,  Kurth,  Lester,  M.  E.  Lewis,  Lincoln,  Lyon,  Manley,  Man- 
tanye,  Marks,  Marshall,  Maybee,  McArthur,  McClure,  McDonough, 


August  10.]  CONSTITUTIONAL  CONVENTION.  339 

Mclntyre,  McKinstry,  McMillan,  Mereness,  Moore,  Mulqueen, 
Nicoll,  Nostrand,  O'Brien,  Ohmeis,  Osborn,  Parker,  Parkhurst, 
Pashley,  Peabody,  Peck,  Phipps,  Platzek,  Powell,  Putnam,  Rogers, 
Root,  Sandford,  Smith,  A.  B.  Steele,  W.  H.  Steele,  T.  A.  Sullivan, 
W.  Sullivan,  Tekulsky,  Titus,  C.  S.  Truax,  Veeder,  Vogt,  Whit- 
meyer,  Woodward,  President  —  99. 

Mr.  M.  E.  Lewis  —  Do  I  understand,  Mr.  President,  that  a 
quorum  is  present? 

The  President  —  A  quorum  is  present.  Mr.  Lincoln  will  please 
take  the  chair  again.  There  are  ninety-nine  members  present. 

Mr.  Lincoln  resumed  the  chair. 

Mr.  M.  E.  Lewis  —  I  move  that  the  Committee  of  the  Whole 
do  now  rise,  report  progress  and  ask  leave  to  sit  again. 

The  Chairman  put  the  question  on  the  motion  of  Mr.  Lewis,  and 
it  was  determined  in  the  negative. 

Mr.  Becker  (resuming)  —  Mr.  Chairman  and  gentlemen  of  the 
quorum:  (Laughter.)  This  situation  was  what  I  contemplated 
when  I  asked  that  the  matter  be  laid  over  until  Tuesday,  unless  Mr. 
Bovvers  wished  to  be  heard.  It  was  after  consultation  with  him 
and  with  Mr.  Johnson  and  others  that  the  motion  was  made,  as  he 
himself  will  state,  that  the  matter  be  postponed  until  Tuesday,  and 
I  do  not  now  wish  to  take  up  the  time  of  the  Convention.  I  know 
that  we  accomplished  considerable  this  morning  on  matters  of  very 
marked  importance  as  to  the  conduct  of  the  business  of  the  Con- 
vention. Many  of  the  members  have  gone  home  and  others  desire 
to  go  home  this  afternoon.  As  it  is  the  last  Saturday  that  they 
will  have  to  themselves,  it  is  no  more  than  right  that  they  should  be 
allowed  to  go  this  afternoon,  and  I  agree  with  them  heartily.  For 
that  reason,  Mr.  Chairman,  I  now  move  that  the  committee  rise, 
report  progress  and  ask  leave  to  sit  again. 

Mr.  Cochran  —  Mr.  Chairman,  that  motion  has  already  been 
twice  disposed  of  in  this  committee,  and  is  not  in  order  until  some 
other  business  is  transacted.  If  we  are  here  in  Committee  of  the 
Whole,  let  us  be  a  Committee  of  the  Whole  and  do  something.  If 
there  is  no  debate  to  be  offered,  let  them  move  to  strike  out  or  to 
adopt  some  section,  and  we  will  come  to  a  vote. 

Mr.  Becker  —  I  would  state  to  the  Chair  that  I  did  make  some 
remarks,  which,  I  presume,  would  be,  perhaps,  by  anybody  else  but 
the  gentleman,  regarded  as  business. 

The  Chairman  then  put  the  question  on  Mr.  Becker's  motion  to 


340  REVISED  RECORD.  [Friday, 

rise,  report  progress  and  ask  leave  to  sit  again,  and  it  was  deter- 
mined in  the  negative. 

Air.  McClure  —  A  question  of  information.  How  did  the  gen- 
tleman from  Buffalo  vote  in  the  caucus  as  to  doing  business  in  this 
Convention  —  staying  here  and  doing  business,  or  not  doing  it? 

Mr.  Becker  —  I  did  not  hear  the  gentleman's  remarks.  I  was 
stating  to  the  Convention  the  reason  why  the  power  of  appointment, 
as  well  as  the  power  of  removal,  was  proposed  to  be  vested  in  the 
Governor.  I  had  already  said  that  it  was  practically  conceded  that 
the  power  of  appointment  in  the  first  instance  should  be  in  the 
mayor,  and  continue  to  be  there  and  nowhere  else,  and  that  it  was 
generally  conceded  that  the  Governor  should  have  the  power  to 
remove;  and  at  the  time  the  call  of  the  House  was  ordered  I  was 
saying  —  or  it  was  my  intention  to  say  —  what  earthly  use  would 
be  the  vesing  of  this  power  of  removal  in  the  Governor,  if  he  did 
not  have  the  power  to  fill  the  vacancy  thus  created?  Because  the 
mayor,  if  he  had  not  already  acted  in  the  matter,  he  being  the 
appointing  power  and  practically  controlling  the  action  of  his  subor- 
dinates, would  immediately  be  likely  to  reappoint  the  same  man, 
or  one  equally  obnoxious,  if  it  became  necessary  to  resort  to  the 
extreme  measure  of  going  to  the  Governor  and  exercising  the 
power  of  removal.  That  is  all  it  seems  necessary  for  me  to  say  in 
justification  or  explanation  of  this  provision  of  the  article.  The 
power  of  appointment  should  be  coupled  with  the  power  of 
removal  in  the  Governor,  during  the  term  of  the  then  mayor,  so 
that  the  mayor  could  not  reappoint  the  same  man  or  one  equally 
objectionable. 

Passing  that  branch  of  the  bill,  which  it  seems  to  me  is  now 
sufficiently  explained,  I  want  to  say  just  a  very  few  words  about  the 
provision  of  the  bill  in  reference  to  the  separation  of  municipal  or 
city  elections  from  State  and  national  elections.  It  seems  to  me 
that  that  is  one  of  the  most  important  features  of  the  bill.  From 
the  time  that  it  was  first  suggested  that  this  Convention  should  take 
up  the  subject  of  home  rule  for  cities,  there  has  been  discussion  of 
that  matter  in  the  public  press  and  amongst  our  people.  I  have 
watched  very  carefully  the  trend  of  that  discussion  and  I  think  I 
am  speaking  within  bounds  if  I  say  that  there  is  not  a  single  respon- 
sible newspaper  in  the  State  of  New  York  that  has  spoken  at  all 
upon  that  subject  that  has  not  said  that  it  was  wise  and  proper  and 
desirable  that  city  elections  should  be  separated  from  State  and 
national  elections.  And  while  I  do  not  concede  that  all  the  wisdom 
of  the  people  of  this  State  is  lodged  in  the  press,  I  do  say,  what 


August  10.]  CONSTITUTIONAL  CONVENTION.  341 

everyone,  I  think,  will  agree  with,  that  the  press  of  this  State  reflects 
in  a  large  measure  the  conscience  and  the  opinion  of  the  people, 
where  the  press  is  practically  unanimous,  as  it  is  upon  this  question. 
Now,  it  may  be,  in  trying  to  effect  that  purpose,  that  the  language 
used  by  the  committee  may  seem  a  little  difficult  of  construction. 
I  found  it  quite  difficult  in  construing  it,  and  the  amendment  as  it 
was  first  drawn  was  more  specific.  Tt  spoke  of  the  dates  at  which 
the  terms  of  office  of  the  different  officers  should  expire;  but  later  on 
it  was  thought  better,  and  a  very  careful  draft  was  made  for  that 
purpose,  to  insert  general  language  in  the  bill;  and  it  is  the  opinion 
of  the  committee  that  with  possibly  one  exception,  which  may  relate 
to  the  time  of  the  expiration  of  the  term  of  office  of  one  of  the 
mayors  of  a  city  of  this  State,  as  to  which  there  will  probably  have  to 
be  an  amendment,  a  verbal  amendment  merely,  changing  it  from 
the  3ist  day  of  December  to  the  ist  of  January,  so  as  to  cover  the 
point  that  an  office  which  expires  at  noon  on  the  ist  of  January 
will  be  affected  by  its  provisions  —  it  seems  to  the  committee  after 
careful  consideration,  in  which  my  friends,  Mr.  Hotchkiss  and  other 
gentlemen  participated,  that  that  fairly  well  expresses  the  purpose  of 
the  amendment.  I  think  I  am  right  in  making  that  statement,  am  I 
not,  Mr.  Hotchkiss,  as  to  the  separation  of  elections? 

Mr.  Hotchkiss  —  Yes. 

Mr.  Becker  —  It  is  a  very  difficult  section  to  draw,  and  the  com- 
mittee will  be  very  glad,  I  know,  to  have  some  of  the  acute  legal 
minds  of  this  Convention,  which  have  been  in  the  habit  of  splitting 
hairs  on  every  question  which  has  come  up  in  Committee  of  the 
Whole,  to  take  hold  of  this,  to  see  if  they  can  formulate  any  amend- 
ments which  will  more  correctly  and  succinctly  and  clearly  express 
the  purpose,  which  is  simply  to  separate  the  election  of  all  city 
officers  from  the  election  of  State  and  national  officers,  through 
the  medium  of  having  those  respective  elections  in  the  odd- 
numbered  years.  Now,  everybody,  as  I  say,  in  and  out  of 
the  committee,  so  far  as  I  have  heard,  including  the  press  of  this 
State,  are  in  favor  of  that  proposed  provision,  giving  it  a  trial,  see- 
ing what  it  will  do.  Like  a  great  many  others,  I  do  not  believe  that 
it  will  be  a  panacea  for  all  our  ills.  I  think  no  one  has  claimed 
that;  but  it  is  thought  that  there  will  be  less  opportunity  for  dickers 
and  deals  between  politicians,  and  that  if  we  separate  these  elections 
the  minds  of  the  citizens  can  be  absolutely  concentrated  on  the 
proposition  that  there  are  to  be  such  and  such  municipal  officers 
voted  for  at  a  given  election  and  no  one  else. 

These,  gentlemen,  are  all  the  remarks  that  I  desire  to  make  at 
this  late  hour  on  this  day  on  the  subject  of  this  bill.  While  the 


342  REVISED  RECORD.  [Friday, 

committee  concede  that  their  work  has  not  been  perfect  —  very  far 
from  perfect  —  they  have  labored  in  season  and  out  of  season,  for 
hours  and  hours,  endeavoring  to  perfect  it;  they  have  had  advice  on 
matters  other  than  that  of  police  and  elections,  and  the  assistance 
of  all  of  the  gentlemen  on  the  committee  through  a  very  consider- 
able time,  that  is,  the  minds  of  the  whole  committee  have  been  con- 
centrated on  those  questions;  and  while  it  is  not  claimed  by  those 
who  signed  the  majority  report  that  the  minority  concurred  in  all 
of  the  provisions,  they  did  assist,  and  assisted  very  materially,  in 
endeavoring  to  perfect  the  expression,  and  I  am  at  a  great  loss  now 
to  understand  why  there  should  be  criticism  of  it. 

Mr.  Nicoll  —  Was  the  omission  to  require  the  Legislature  to  pass 
general  laws  intentional? 

Mr.  Becker  —  I  do  not  understand  that  there  is  any  such  omis- 
sion. If  there  was  I  think  I  may  say  —  I  speak  for  myself  now 
only,  and  possibly  from  what  I  have  heard  one  or  two  of  the 
other  members  of  the  committee  say  —  it  was  very  far  from  being 
intentional. 

Mr.  Nicoll  —  Now,  let  me  call  your  attention  to  the  first  section 
of  article  i.  That  provides  that  the  Legislature  shall  pass  general 
laws  for  incorporating  new  cities.  Now,  section  3  is  the  only  part 
of  the  amendment  which  relates  to  the  passage  of  other  general 
laws.  That  provides  that,  except  as  permitted  by  section  4,  the 
Legislature  shall  not  pass  any  laws  except  general  laws  or  a  general 
city  law.  What  I  want  to  know  is  whether  or  not  you  intended  to 
leave  it  to  the  decision  of  the  Legislature  to  pass  such  general  laws 
and  to  confine  it  to  their  discretion,  or  whether  or  not  your  omis- 
sion to  make  it  mandatory  on  the  Legislature  was  intentional? 

Mr.  Becker  —  I  did  not  understand  the  gentleman's  question. 
Lender  this  amendment,  cities  are  divided  into  two  classes,  and  the 
provision  is  that  general  laws  shall  be  passed  and  general  city 
laws 

Mr.  Nicoll  —  May  be  passed? 

Mr.  Becker  —  General  laws  shall  be  passed  as  to  new  cities; 
general  city  laws  may  be  passed  as  to  cities  of  a  class,  as  I  under- 
stand it.  Am  I  not  right,  Mr.  Johnson? 

Mr.  J.  Johnson  —  Yes. 

Mr.  Becker  —  Consequently  a  general  city  law  could  be  passed 
for  any  city  in  a  class,  but  it  must  be  general  to  all. 

Mr.  Nicoll  —  It  would  seem  that  there  is  no  provision  compelling 


August  ID.]  CONSTITUTIONAL  CONVENTION.  343 

the  Legislature  to  pass  either  general  laws  as  to  existing  cities  or 
general  city  laws. 

Mr.  Becker  —  They  have  that  power  now. 

Mr.  Nicoll  —  They  have  the  power,  but  you  make  nothing  man- 
datory about  it. 

Mr.  Becker  —  Why  should  we? 

Mr.  Nicoll  —  Isn't  that  the  whole  question? 

Mr.  Becker  —  I  think  not. 

Mr.  Nicoll  —  Is  not  the  whole  question  of  home  rule  really  a 
question  of  existing  cities  and  not  a  question  of  new  cities,  and 
should  not  there  be  a  mandate  to  the  Legislature  to  pass  general 
laws,  or  general  city  laws,  if  you  choose  to  call  them  so,  as  to 
cities  that  are  now  incorporated? 

Mr.  Becker  —  All  cities,  whether  now  incorporated  or  hereafter 
to  be  incorporated,  as  I  understand  the  purpose  of  this  amendment, 
are  to  be  divided  into  two  classes.  As  to  cities  of  any  class,  a 
general  city  law,  applicable  to  cities  of  that  class,  may  be  passed,  and 
shall  be  passed,  as  I  understand  it  — 

Mr.  Nicoll  —  That  is  not  made  mandatory  by  your  article. 

Mr.  Becker  —  Well,  I  think  that  that  will  be  the  practical  work- 
ing of  it  though.  Where  you  specify  that  laws  relating  to  certain 
specific  subjects  shall  be  special  laws,  why  would  not  all  other 
laws  relating  to  the  other  subjects,  and  relating  to  cities  of  a  class, 
be  general  laws?  And  why  would  it  not  be  obligatory  upon  the 
Legislature,  in  passing  a  law  in  regard  to  cities  of  any  particular 
class,  to  pass  a  general  city  law  relating  to  cities  of  that  class, 
and  no  other?  That,  at  least,  was  my  understanding  of  the  amend- 
ment. If  I  am  in  error  about  it,  I  presume  it  can  be  corrected. 

Mr.  Griswold  —  Will  the  gentleman  allow  me  to  ask  a  question 
for  information?  I  understand  their  proposition  to  be  to  invest 
the  power  of  removal  and  the  appointing  power  in  the  same  officer  — 
in  the  Governor. 

Mr.  Becker — No;  I  have  already  explained  that  very  fully.  If 
the  gentleman  had  been  here  I  think  he  would  have  heard  it.  The 
power  of  appointment  is  now  by  law  in  the  mayor.  We  continue 
that  power 

Mr.  Griswold  —  The  power  of  removal  is  vested  in  the  Governor; 
the  power  of  appointment,  in  the  mayor? 

Mr.  Becker  —  It  is  now  elective.  The  charters  can  provide  for 
the  power  of  removal  in  the  mayor  if  they  wish,  as  well  as  in  the 


344  REVISED  RECORD.  [Friday, 

Governor.  Nothing  to  prevent  it  in  the  existing  law.  The  charter 
of  the  city  of  New  York  now  provides  that  the  police  commission- 
ers of  the  city  may  be  removed  by  the  mayor,  by  and  with  the 
approval  of  the  Governor.  That  is  the  law  to-day.  We  do  not 
change  that;  don't  pretend  to  change  it.  But  we  do  say  that  the 
Governor  may  also  remove  on  charges;  and  where  he  does  see  fit 
to  exercise  that  power  after  the  mayor  has  perhaps  neglected  to 
do  it,  then,  for  fear  that  the  mayor  may  turn  around  and  appoint 
the  same  man,  or  one  equally  obnoxious,  we  vest  the  power  of 
appointment  in  the  Governor,  limiting  the  term  of  the  man  thus 
appointed  to  the  term  of  the  mayor  then  in  office;  so  that  when  a 
new  mayor  comes  in,  he  will  resume  his  authority  and  power  of 
appointment. 

Mr.  Griswold  —  Still,  you  leave  the  power  of  removal  in  the 
Governor. 

Air.  Becker  —  Only  after  it  is  failed  to  be  exercised  by  the  mayor. 
Mr.  Griswold  —  But  still  that  power  would  remain 

Mr.  Becker  —  He  would  have  the  power,  if  he  removed,  to 
appoint,  during  only  the  term  of  the  mayor  then  in  office. 

Mr.  Griswold  —  The  only  objection  that  suggests  itself  to 
me  is 

Mr.  Dean  —  I  submit  that  if  these  gentlemen  desire  to  have  a  pri- 
vate discussion,  they  hire  a  hall. 

The  Chairman  —  Possibly  that  point  is  well  taken. 

Mr.  Griswold  —  I  only  wanted  to  ask  a  question  for  informa- 
tion  

The  Chairman  —  Mr.  Griswold  was  recognized  for  the  purpose 
of  asking  a  question,  and  it  has  resulted  in  a  colloquy,  and  Mr. 
Becker  has  the  floor. 

Mr.  Griswold  —  I  wanted  merely  to  ask  as  to  whether  that  would 
leave  the  power  of  appointment  so  that  the  Governor,  who  is  of 
an  opposite  political  party,  might  remove  the  officer  and  imme- 
diately appoint  one  of  his  own  selection,  also  belonging  to  the 
opposite  party. 

Mr.  Becker  —  The  gentleman  asks  if  it  would  be  possible  for  a 
Governor  of  opposite  political  faith  from  the  mayor  and  the  people, 
to  exercise  the  power  of  removal  and  appointment.  I  say,  of 
course  it  would,  but  the  provision  is  that  a  police  commissioner 
can  only  be  removed  upon  charges  preferred,  and  after  a  hearing; 
and  the  same  power  exists  to-day  in  cases  where  the  Governor 
removes  a  sheriff  or  a  district  attorney,  who  are  peace  officers. 


August  10.]  CONSTITUTIONAL  CONVENTION.  345 

Within  the  last  sixty  days  the  Governor  of  this  State  has  removed 
the  sheriff  of  Erie  county  and  appointed  his  successor.  And  if 
they  have  that  power  as  to  these  peace  officers  of  counties,  why 
should  not  they  have  the  power  as  to  the  peace  officers  of  cities, 
in  which  most  of  the  infractions  and  breaches  of  the  peace  occur? 

Mr.  Deady  —  May  I  ask  the  gentleman  a  question?  Has  any- 
body else  the  power  to  remove  a  sheriff  of  a  county  except  the 
Governor? 

Mr.  Becker  —  I  will  answer  the  gentleman  that,  as  I  under- 
stand the  Constitution,  nobody  else  has  the  power  to  remove  the 
sheriff;  and  I  will  also  add  that  the  sheriff  is  an  elective  officer. 

.  Mr.  Deady  —  And  a  peace  officer. 

Mr.  Becker — You  may  call  him  so,  but  he  is  elected  by  the 
people  of  a  locality.  The  head  of  a  police  department  is  an 
appointive  officer. 

Mr.  M.  E.  Lewis  —  I  desire  to  move  now  that  the  committee  rise, 
report  progress  and  ask  leave  to  sit  again.  I  make  this  motion 
at  this  time  because  a  large  number  of  delegates  living  in  the 
western  part  of  the  State,  if  this  debate  and  argument  are  protracted 
beyond  a  quarter  of  one,  will  be  unable  to  catch  the  one  o'clock 
train.  That  being  so,  it  will  be  necessary  for  them  to  remain 
here  until  evening. 

Mr.  Becker  —  I  most  cheerfully  give  way  for  this  motion.  I  hope 
it  will  prevail.  I  think,  in  view  of  the  fact  that  this  is  the  last 
Saturday  that  members  will  have  at  home  and  have  a  chance  to 
adjust  their  business,  this  Convention  should  now  adjourn;  should 
give  them  an  opportunity  to  go  home  this  afternoon  and  attend  to 
their  private  affairs,  that  they  can  be  here  next  week. 

The  Chairman  put  the  question  on  the  motion  of  Mr.  Lewis 
that  the  committee  rise,  report  progress  and  ask  leave  to  sit  again, 
and  it  was  determined  in  the  affirmative. 

President  Choate  resumed  the  chair. 

Chairman  Lincoln  —  Mr.  President,  the  Committee  of  the  Whole 
have  had  under  consideration  the  report  of  the  Committee  on  Cities, 
have  made  some  progress  therein,  and  now  rise,  report  progress, 
and  ask  leave  to  sit  again. 

The  President  put  the  question  on  agreeing  to  the  report  of  the 
Committee  of  the  Whole,  and  it  was  determined  in  the  affirmative. 

The  President  —  Mr.  Maybee,  of  Sullivan,  asks  leave  of  absence 
for  the  day. 


346  REVISED   RECORD.  [Friday, 

The  President  put  the  question  on  the  request  of  Mr.  Maybee, 
and  it  was  determined  in  the  affirmative  and  leave  duly  granted. 

Mr.  M.  E.  Lewis  —  Mr.  President,  I  move  that  the  consideration 
of  the  report  of  the  Cities  Committee  be  made  a  special  order 
for  Tuesday  morning  immediately  after  the  reading  of  the  Journal. 
I  make  this  motion  for  the  reason  that  the  Convention  is  now  in 
the  midst  of  the  debate  upon  that  proposition,  and  it  seems  to  me 
that  before  any  other  subject  is  taken  up  it  would  be  well  to  com- 
plete the  consideration  of  this  question.  If  we  are  permitted  to 
have  Tuesday  for  the  consideration  of  this  subject,  I  think  the 
matter  can  be  completed  at  the  end  of  that  time. 

Mr.  Hawley  —  I  desire  to  offer  an  amendment  that  it  be  made 
a  special  order  for  Tuesday,  so  that  if  there  is  any  routine  business 
that  comes  before  the  Convention,  it  can  be  disposed  of  in  the 
morning,  and  so  that  when  we  come  to  the  special  orders  this  shall 
have  precedence. 

The  President  —  Will  Mr.  Lewis  accept  the  amendment? 

Mr.  Lewis  —  I  understand  the  amendment  is  simply  that  it  shall 
take  precedence  after  all  routine  business  is  finished? 

Mr.  Hawley  —  Yes. 

Mr.  Lewis  —  I  will  accept  that  amendment. 

Mr.  Kerwin  —  Before  putting  this  question  on  making  the  report 
of  the  Committee  on  Cities  a  special  order  for  Tuesday,  we  ought 
to  turn  and  look  at  the  clock;  turn  and  look  at  this  chamber  to-day, 
then  turn  and  look  at  our  work  this  morning.  What  was  it? 
Three  sessions  a  day,  for  six  days  in  a  week!  Here  we  are,  not  on 
a  Saturday,  but  on  a  Friday,  and,  if  the  point  was  raised  now,  this 
motion  could  .not  be  carried.  We.  have  not  a  quorum.  Mr.  Presi- 
dent, before  putting  the  motion  I  raise  the  point  that  there  is  not 
a  quorum  present.  Let  them  go  home.  I  raise  the  point  of  no 
quorum. 

Mr.  M.  E.  Lewis  —  I  move  that  the  Convention  do  now  adjourn. 

Mr.  Holls  —  Was  a  resolution  not  passed  yesterday  that  the 
report  of  the  Committee  on  Cities  be  put  at  the  head  of  the  calendar 
on  general  orders? 

The  President  —  For  that  day. 

The  President  then  put  the  question  on  the  motion  of  Mr.  Lewis 
to  adjourn,  and  it  was  determined  in  the  affirmative. 


August  10.]  CONSTITUTIONAL  CONVENTION.  347 

Tuesday,  August  14,  1894. 

The  Constitutional  Convention  of  the  State  of  New  York  met 
in  the  Assembly  Chamber  in  the  Capitol,  at  Albany,  N.  Y.,  August 
14,  1894,  at  ten  o'clock  in  the  morning. 

President  Choate  called  the  Convention  to  order. 
The  Rev.  A.  T.  Johnson  offered  prayer. 

Mr.  Acker  moved  that  the  reading  of  the  Journal  of  August  tenth 
be  dispensed  with. 

The  President  put  the  question  on  the  motion  of  Mr.  Acker,  and 
it  was  determined  in  the  affirmative. 

The  President  —  Before  general  orders  are  taken  up,  are  there 
any  special  orders  for  this  morning? 

Mr.  M.  E.  Lewis  —  Mr.  President,  I  believe  the  pending  question 
at  the  time  of  the  adjournment  last  Friday  was  the  motion  to 
make  the  report  of  the  Cities  Committee  a  special  order  for  this 
morning.  That  motion  was  not  acted  upon,  owing  to  the  lack  of 
a  quorum. 

The  President  —  Does  Mr.  Lewis  make  a  motion? 

Mr.  Lewis  —  Mr.  President,  I  call  for  the  pending  question. 

Mr.  Ackerly  —  Mr.  President,  Mr.  Manley  is  detained  away  from 
the  Convention  upon  some  matters  of  business,  and  desires  to  be 
excused  from  attendance  at  this  morning  and  this  afternoon 
sessions. 

The  President  put  the  question  on  the  request  of  Mr.  Manley 
to  be  excused  from  attendance,  and  he  was  so  excused. 

Mr.  Dean  —  Mr.  President,  is  a  petition  or  a  memorial  in  order 
at  this  time? 

The  President  —  Not  now;  the  pending  motion  is  that  which  was 
left  undetermined  before  the  adjournment  on  Friday  last. 

Mr.  Marks  —  Mr.  President,  I  have  received  a  telegram  from 
Mr.  J.  I.  Green,  stating  that  owing  to  illness  in  his  family  he  will  be 
unable  to  attend  the  Convention  until  Thursday,  and  asking  to  be 
excused  until  that  time. 

The  President  put  the  question  on  the  request  of  Mr.  Green  to  be 
excused  from  attendance,  and  he  was  so  excused. 

Mr.  Chipp  —  Mr.  President,  on  Friday  I  asked  leave  to  be 
excused  from  attendance  upon  the  Convention  during  this  week. 


348  REVISED   RECORD.  [Tuesday, 

Circumstances  are  so  changed  that  I  am  able  to  be  here,  and  I, 
therefore,  withdraw  my  request  to  be  excused  from  attendance. 

The  President  —  The  question  is  upon  the  motion  that  was 
pending  at  the  time  of  the  adjournment  upon  Friday,  to  make  the 
report  of  the  Cities  Committee  a  special  order  for  this  morning. 
It  requires  a  two-thirds  vote. 

Mr.  J.  Johnson  —  Mr.  President,  the  debate  was  cut  off  in  the 
middle  of  the  discussion,  and,  therefore,  the  Committee  on  Cities 
think  it  eminently  proper  that  it  should  be  resumed  this  morning, 
and  not  left  in  an  incomplete  state.  That  is  the  reason  the  motion 
is  made. 

The  President  put  the  question  on  the  motion  to  make  the  report 
of  the  Cities  Committee  a  special  order  for  this  time,  and  it  was 
determined  in  the  affirmative. 

Mr.  M.  E.  Lewis  —  Mr.  President,  I  move  that  the  Convention 
now  go  into  Committee  of  the  Whole  on  the  report  of  the  Com- 
mittee on  Cities. 

The  President  put  the  question  on  the  motion  of  Mr.  Lewis,  and 
it  was  determined  in  the  affirmative;  whereupon  the  Convention 
resolved  itself  into  Committee  of  the  Whole,  and  Mr.  Lincoln  took 
the  chair. 

The  Chairman  —  The  Convention  is  in  Committee  of  the  Whole 
for  the  consideration  of  general  order  No.  13,  the  report  of  the  Com- 
mittee on  Cities,  last  printed  No.  409,  and  the  last  thing  on  the 
calendar  this  morning.  What  is  the  pleasure  of  the  committee? 

Mr.  J.  Johnson  —  Mr.  Chairman,  I  do  not  desire  to  speak  now. 
I  supposed  that  there  were  other  gentlemen  who  desired  to  be 
heard.  If  not,  I  suppose  I  should  be  granted  the  privilege  of  closing 
the  debate. 

Mr.  Hotchkiss  —  Mr.  Chairman,  although  I  think  that,  techni- 
cally, the  form  of  the  motion  which  I  offered  was  for  the  substitu- 
tion of  the  measure  which  I  proposed  for  the  entire  measure 
proposed  by  the  Cities  Committee,  I  at  the  same  time  said  that  I 
proposed  subsequently  to  offer  a  separate  substitute  for  section  2. 
In  order  that  my  motion  may  be  technically  correct,  I  wish  to 
amend  its  form  simply,  and  to  have  the  record  show  that  my  substi- 
tute is  offered  for  all  of  the  sections  of  the  measure  proposed  by  the 
Cities  Committee,  except  section  2,  which  affects  the  separation  of 
elections. 

Mr.  Dean  —  Mr.  Chairman,  after  several  days  of  rigid  mental 
discipline,  I  have  reached  a  state  of  mind  where  I  can  discuss  in  all 


August  14.]  CONSTITUTIONAL  CONVENTION.  349 

seriousness  the  absurdities  of  the  report  of  the  Committee  on  Cities. 
It  takes  a  good  deal  of  effort,  even  for  one  whose  lines  have  been 
cast  in  the  sombre  tints  of  life,  to  attain  this  mental  attitude,  but 
I  have  accomplished  the  feat,  and  I  now  feel  that  I  could  stand 
a  civil  service  examination  in  gravity  before  my  distinguished  critics 
of  last  week,  and  be  marked  100  per  cent.  Having  attained  this 
condition,  I  desire,  in  all  earnestness,  to  call  the  attention  of  the 
Convention  to  article  I  of  this  report.  It  says  that  "  every  city 
shall  have  a  common  council,  which  shall  consist  of  one  or  two 
bodies,"  and  that  this  common  council  shall  be  "  elected  with  or 
without  cumulative  voting,  or  proportionate  or  minority  representa- 
tion, and  with  such  legislative  power  as  may  be  provided  by  law." 
I  shall  make  no  criticism  upon  the  obvious  absurdity  of  this  lan- 
guage, because  I  have  no  desire  to  waste  time  in  mere  captiousness; 
but  I  do  want  to  say  that  this  provision  violates  every  well-tried 
principle  of  popular  government  by  majorities,  and  that,  in  my 
judgment,  it  is  a  fatal  defect  in  the  instrument.  In  the  first  place, 
the  provision  that  "  every  city  shall  have  a  council  of  one  or  two 
bodies  "  is  legislative.  A  Constitution  should  declare  either  that 
the  council  should  consist  of  one  body  or  of  two  bodies,  or  it  should 
leave  the  question  entirely  to  the  Legislature.  The  provision,  as  it 
stands  in  the  report  of  the  committee,  does  not  change  the  attitude 
of  the  Legislature  to  municipal  governments  in  the  slightest  degree, 
and  is  simply  so  much  verbiage.  The  Constitution  does  not  confer 
powers;  it  limits  them.  Except  specifically  limited,  the  powers  of 
the  Legislature  are  absolute,. and  mere  declaratory  provisions  have 
no  proper  place  in  the  fundamental  law  of  the  State.  This  criti- 
cism applies  to  the  declaration  that  these  bodies  may  be  chosen 
"  with  or  without  cumulative  voting."  But,  we  are  told  that  the 
Court  of  Appeals  has  decided  that  a  municipality  cannot  be  author- 
ized to  elect  its  members  of  the  common  council  by  cumulative 
voting,  because  it  conflicts  with  the  provision  of  the  Constitution 
that  all  qualified  male  citizens  shall  be  entitled  to  vote  "  for  all 
officers  that  now  are  or  hereafter  may  be  elective  by  the  people." 
If  this  is  true,  then  we  should  find  ourselves  in  the  position  of 
introducing  a  conflict  into  the  Constitution,  for,  I  understand  that 
all  of  these  schemes  for  cumulative  voting,  or  proportional  or 
minority  representation,  must,  of  necessity,  curtail  the  liberty  of  the 
voter  in  respect  to  some  of  the  officers  to  be  elected.  All  of  these 
matters  are,  however,  incidental.  The  real  question  to  be  decided, 
and  I  am  ready  to  meet  the  issue,  is  whether  we  want  to  introduce 
into  the  Constitution  of  this  State  a  provision  which  is  certain  to 
entail  no  end  of  experimental  legislation,  and  which  can  have  no 


350  REVISED  RECORD.  [Tuesday, 

other  result  than  the  undermining  of  good  government.  In  a  legis- 
lative body  there  can  be  but  two  parties.  Third  parties  may  exist 
in  name,  but  the  legislation  is  determined  by  the  votes  for  and 
against  any  given  measure,  and  this  is  not  better  nor  worse,  because 
it  is  the  result  of  the  votes  cast  by  one  party  or  another.  The 
minority  has  no  right  to  representation.  It  is  the  constant  effort 
of  the  minority  to  become  the  majority,  which  affords  a  guarantee 
of  the  best  results  in  popular  government.  If  we  take  this  con- 
serving influence  out  of  the  calculation  by  giving  it  representation 
in  our  legislative  bodies,  we  have  destroyed  our  greatest  safe- 
guard; we  have  lulled  the  masses  into  a  fancied  security;  we  have 
taken  away  from  them  the  incentive  to  political  activity  and  watch- 
fulness and  have  laid  the  foundation  for  all  manner  of  abuses. 

The  vast  majority  of  matters  disposed  of  by  legislative  bodies  are 
free  from  partisanship,  and  the  idea  that  we  are  not  represented 
simply  because  the  individual  chosen  in  our  district  differs  from  us 
in  the  mere  matter  of  a  party  name,  is  an  absurdity.  Flagrant  and 
continual  abuses,  even  in  the  city  of  New  York,  must  result  in 
the  majority  coming  to  the  minority,  if  we  do  not  so  complicate  the 
machinery  of  municipal  government  that  the  people  cannot  con- 
centrate their  energies  upon  the  abuse.  No  political  reformer  has 
ever  yet  existed  who  has  been  able  to  devise  a  complication  which 
did  not  operate  to  strengthen  the  machine  element  in  politics.  The 
men  who  are  shrewd  enough  to  become  leaders  in  politics  are  cer- 
tain to  familiarize  themselves  with  details  much  sooner  than  the 
masses,  and  knowledge  is  power  in  politics,  as  well  as  in  any  other 
walk  of  life.  The  simpler,  therefore,  the  machinery  of  government, 
the  more  certain  are  we  to  have  the  intelligent  co-operation  of  the 
masses  in  the  direction  of  honesty  and  competency  in  public  affairs. 
The  experience  of  more  than  a  hundred  years  testifies  to  the  efficacy 
of  responsible  representative  government  by  majorities.  The  most 
conspicuous  failure  in  municipal  government  is  conceded  to  be  that 
of  the  city  of  New  York,  and  this  is  the  city  in  which  the  most  radi- 
cal departures  have  been  made  from  this  well-tried  principle.  It 
is  now  proposed  to  remedy  this  evil  by  opening  the  way  to  still 
further  transgressions  upon  this  principle,  and  I  appeal  to  the 
patriotic  intelligence  of  this  Convention  to  set  its  face  resolutely 
against  this  proposition.  It  is  based  upon  a  false  theory  of  govern- 
ment; it  proceeds  upon  the  assumption  that  the  majority  of  the 
people  cannot  be  trusted  to  govern  themselves,  and  its  logical  con- 
summation is  absolutism  or  anarchy.  But,  it  is  contended,  this  is 
simply  permissive,  that  the  Legislature  need  not  act  upon  this 
proposition,  unless  it  wants  to,  or  unless  the  people  want  it.  That, 


August  14.]  CONSTITUTIONAL  CONVENTION.  351 

to  my  mind,  is  the  strongest  possible  objection.  I  am  not  willing 
to  turn  over  to  the  Legislature  the  authority  to  experiment  in  the 
domain  of  principles.  If  the  rule  of  majorities  is  right,  and  I  believe 
it  is,  then  the  Legislature  should  be  inhibited  the  power  to  pass  any 
law  violating  that  principle,  even  though  the  people  of  a  given 
municipality  —  in  the  feverish  desire  for  change  —  should  demand 
it.  There  are  matters  in  which  it  is  proper  to  protect  society,  even 
from  itself,  and,  I  believe,  this  to  be  one  of  them.  This  Convention 
would  not  think  of  adopting  this  principle  of  minority  representa- 
tion for  the  State  Legislature;  such  a  scheme  could  not  command 
the  votes  of  a  hundred  thousand  people  in  this  State.  Why,  then, 
should  we  give  to  the  Legislature  the  authority  to  try  the  experi- 
ments upon  municipalities?  If  we  give  this  authority  to  the  Legis- 
lature, it  would  be  construed  by  every  theorist  as  an  indorsement 
of  the  idea,  and  the  Legislature,  answering  to  unreasoning  public 
clamor,  will  be  found  inducting  this  pernicious  system  into  the 
municipalities  of  this  State.  The  time  to  stop  a  wrong  is  just 
before  it  is  commenced,  and  the  time  to  stop  this  so-called  reform 
is  right  here  and  now. 

Mr.  Mulqueen  —  Mr.  Chairman,  the  question  of  home  rule, 
which,  evidently,  is  the  object  of  all  the  members  of  this  Conven- 
tion to  give  to  cities,  is  one  upon  which  men  may  honestly  differ. 
The  measure  proposed  by  the  Committee  on  Cities  I  do  not  believe 
they  ever  hoped  to  have  passed  by  this  Convention.  It  is  a  measure 
which  might  well  be  called  a  bill  to  deprive  cities  of  home  rule,  not 
a  bill  to  grant  them  home  rule. 

The  first  section  says  that  "  every  city  shall  have  a  mayor,  who 
shall  be  its  chief  executive,  to  hold  office  for  two  years;  and  a 
common  council,  with  two  bodies,  to  be  elected  with  or  without 
cumulative  voting,  or  proportionate  or  minority  representation, 
and  with  such  municipal  legislative  powers  as  may  be  provided  by 
law." 

Now,  Mr.  Chairman,  I  believe  that  no  city  should  hereafter  be 
incorporated  by  any  special  law.  I  believe  that  general  laws  should 
be  passed  for  incorporating  new  cities;  and  I  also  believe  that  if 
some  good  feature  should  be  found  in  that  general  law  for  that 
particular  city,  then  provision  ought  to  be  made  which  would  give 
other  cities  already  organized  the  right  to  come  in  and  take  the 
benefit  of  these  general  laws. 

Now,  in  my  judgment,  we  could  meet  that  by  a  very  simple 
provision;  a  provision  which  would  enact  that  no  city  shall  here- 
after be  incorporated  by  a  special  law.  The  Legislature  shall  enact 
general  laws  for  incorporating  new  cities.  Cities  heretofore  incor- 


352  REVISED  RECORD.  [Tuesday, 

porated  may  became  organized  under  such  general  law  whenever 
the  majority  of  the  electors  of  any  such  city,  voting  thereon  at  any 
general  or  special  election,  shall  vote  in  favor  thereof;  and  such 
general  laws  shall  make  provision  whereby  the  question  of  the 
organization  of  any  such  city  under  the  general  law  applicable 
thereto  may,  from  time  to  time,  be  submitted  to  the  electors  thereof. 

This  is  substantially,  and,  perhaps,  in  shorter  form,  the  proposi- 
tion submitted  by  the  committee  of  twenty-one. 

Now,  section  2  of  the  bill  says  —  and  I  would  have  a  second 
section,  Mr.  Chairman ;  I  would  break  up  the  first  section  of  the  bill 
and  have  the  second  section  read  as  follows :  "  Every  city  shall  have 
a  mayor,  who  shall  be  its  chief  executive,  with  such  powers  as  may 
be  provided  by  law;  his  term  of  office  shall  be  two  years,  except  that 
in  cases  where  the  mayor  shall  be  elected  in  the  year  1894,  the  term 
of  office  shall  only  be  for  one  year,  in  order  that  all  terms  might 
terminate  in  the  odd  years  as  hereinafter  provided." 

I  understand,  Mr.  Chairman,  that  the  effect  of  the  bill  that  has 
been  reported  by  the  committee,  if  carried  into  operation,  would 
be  to  extend  the  present  mayor's  term  in  the  city  of  New  York  one 
year,  without  an  election  by  the  people.  We,  of  the  city  of  New 
York,  want  that  question  submitted  to  the  people,  and  we  do  not 
want  to  come  in  here  by  a  defective  bill  and  have  the  term  of  office 
of  the  chief  executive  of  the  city  of  New  York  extended  one  year. 
Therefore,  in  the  substitute  which  I  shall  propose,  Mr.  Chairman, 
I  say  honestly  and  fairly,  right  on  the  face  of  the  bill,  we  want  the 
mayor  elected  in  1894  for  one  year,  to  the  end  that  hereafter  all 
elections  shall  be  in  odd  years,  and  then  we  have  it  for  two  years. 
Then  we  secure  for  all  times  separate  municipal  elections. 

"  Every  city  shall  have  a  common  council."  So  say  we  all  of  us. 
But  the  committee's  report  would  provide  that  we  should  have 
minority  representation  in  common  councils.  I  am  opposed  to 
that.  I  believe  in  the  doctrine  that  the  majority  should  rule. 
I  believe  that  if  this  Convention  gives  to  the  people  separate  elec- 
tions, and  then  gives  to  the  men  elected  at  those  elections  great 
power,  an  inducement  to  great  men  to  come  in  and  be  part  of  the 
municipality,  you  will  not  need  minority  representation,  because,  as 
the  New  York  Times  said  in  an  editorial  the  other  day,  why,  then, 
the  best  men  of  the  State  will  seek  office,  and  both  parties  will  be 
compelled  to  put  the  best  men  in  office,  and  then,  having  the  power 
to  enact  laws  for  the  government  of  the  municipality,  yon  would 
not  need  minority  representation. 

I  believe  that  it  is  un-democratic  and  un-American  to  say  that 
we  should  have  minority  representation  in  common  councils.  It 


August  14.]  CONSTITUTIONAL  CONVENTION.  353 

is  the  right  of  the  people  to  govern,  and  the  right  of  the  majority  to 
govern. 

Now,  as  to  the  second  section.  "  All  elections  of  city  officers  in 
all  cities,  and  of  county  officers  in  the  counties  of  New  York  and 
Kings,  and  in  all  counties  whose  boundaries  are  the  same  as  those 
of  a  city,  except  to  fill  vacancies,  shall  be  on  the  Tuesday  succeeding 
the  first  Monday  in  November  in  an  odd-numbered  year,  and  the 
term  of  every  such  officer  shall  expire,  "  etc.,  the  same  as  the  report 
of  the  committee.  The  term  "  city  officers  "  is  the  same  as  in  the 
report.  "  The  Legislature  shall  enact  laws  regulating  the  terms  of 
all  such  officers  now  elected  or  to  be  elected,  so  that  the  terms  of 
office  of  such  officers  shall  expire  in  an  odd-numbered,  year." 

Why  should  we  put  in  our  Constitution  when  this  or  that  officer's 
term  shall  expire?  That  is  a  detail.  We  state  the  principle  that 
you  must  have  separate  municipal  elections,  and  we  say  to  the 
Legislature  you  are  bound  by  this  principle;  now  provide  for  the 
carrying  of  it  out.  And,  if  one  officer's  term  of  office  is  two  years, 
and  that  must  be  changed  to  one,  and  another  officer's  term  of  office 
is  for  three  years  and  that  should  be  changed  to  two,  let  the  Legis- 
lature arrange  those  details. 

Now,  without  permission,  Mr.  Chairman,  I  would  adopt  the 
very  wise  suggestion  submitted  by  my  learned  friend  from  Kings 
(Mr.  Jenks)  in  the  classification  of  cities.  It  is  not  fair,  as  this  bill 
proposes,  that  you  should  simply  have  two  classes,  one  all  above 
fifty  thousand,  and  the  other  all  below  it.  I  believe  we  should  have 
three  classes,  the  first  class  to  consist  of  cities  of  250,000  popula- 
tion and  upwards,  the  second  class  of  from  50,000  to  250,000,  and 
the  third  class  to  consist  of  all  other  cities.  Now,  the  report  of  the 
committee  has,  in 'section  3,  line  19,  "laws  relating  to  all  cities  of 
the  same  class  and  laws  relating  to  all  cities  of  one  class  and  one 
or  more  cities  of  the  other  class  are  general  city  laws."  And  then 
they  provide  —  I  cannot  lay  my  hand  on  it  now  —  that  the  Legisla- 
ture may  pass  a  general  city  law  for  one  class  of  cities  or  for  another 
class  of  cities,  and  one  or  more  cities.  In  other  words,  that  the 
Legislature  might  pass  a  law  regulating  cities  under  50,000,  and 
also  affecting  the  city  of  New  York  or  the  city  of  Brooklyn.  I  do 
not  believe  that  that  is  the  intention  of  the  committee,  because  that 
would  be  the  end  of  home  rule.  Now,  I  say,  to  get  rid  of  that,  laws 
relating  to  all  cities  of  the  same  class,  are  general  city  laws,  and  no 
laws  shall  be  enacted  concerning  cities,  except  general  city  laws. 

Now,  as  to  section  5  —  section  3  in  the  bill  is  section  5  in  the 
substitute,  which  I  shall  offer — "  The  Legislature  shall  not  pass 
23 


354  REVISED   RECORD.  [Tuesday, 

any  law  relating  to  cities  as  to  any  of  the  following  subjects,"  and 
now  I  have  adopted  the  suggestions  of  the  committee  and  added  a 
few  others.  I  say  "  the  Legislature  shall  not  pass  any  laws  relating 
to  cities  on  any  of  the  following  subjects:  Streets  and  highways, 
as  in  the  report;  parks  and  public  places,  as  in  the  report;  and, 
third,  the  appointment,  equipment,  compensation,  promotion  or 
removal  of  police  officers  in  every  grade  and  rank.  I  say,  fourth, 
education;  fifth,  charities  and  corrections;  then  the  same  as  the 
committee,  on  to  the  eleventh;  and,  as  to  the  eleventh,  they  say: 
"  Vacating,  reducing  or  postponing  any  tax,"  and  I  say:  "  Levying 
and  collecting,"  as  well.  It  is  the  duty  of  the  municipality  to  levy 
and  collect  the  taxes,  and  it  should  have  the  sole  control  over  the 
same,  just  as  much  as  it  should  have  the  sole  power  to  vacate, 
reduce  or  postpone. 

Now,  as  to  section  6  —  and  I  think  it  is  section  5  in  the  bill  — 
as  to  police.  I  say  that  the  sole  power  to  appoint  or  remove  a 
commissioner  of  police  or  other  head  of  the  police  force  of  any  city 
shall  be  vested  in  the  mayor  of  such  city.  He  is  the  representative 
of  the  city.  He  is  the  one  who  is  directly  responsible  to  the  people 
for  the  management  thereof.  You  cannot  have  any  home  rule,  if 
you  take  from  it  all  that  makes  it  valuable,  and  that  is  direct 
responsibility  of  the  municipal  authorities  to  the  people  to  be 
affected  thereby.  And,  although  in  the  bill  it  was  stated  that  no 
other  city  officer  shall  ever  have  the  right  to  name  a  police  com- 
missioner, it  is  silent  upon  the  question  whether  the  Legislature 
would  not  have  the  right  to  give  the  Governor  the  power  to  appoint, 
even  in  the  first  instance. 

Mr.  J.  Johnson  —  Mr.  Chairman,  may  I  interrupt  the  gentleman? 
The  matter  he  refers  to  is  fully  and  amply  and  certainly  provided 
against  by  section  2  of  article  10  of  the  present  Constitution,  which 
remains  inviolate  and  unaffected  by  this  provision. 

Mr.  Mulqueen  —  I  am  glad  to  hear  that,  Mr.  Chairman;  but  at 
the  same  time  we  may  as  well  get  this  bill,  which  is  called  home 
rule  for  cities,  absolutely  correct  now.  It  may  be  supplied  by 
another  provision  of  the  Constitution,  but  let  us  have  it  here  also, 
if  we  believe  in  home  rule.  If  we  want  to  give  the  municipal 
authorities  the  right  to  govern  themselves,  let  us  say  it  right  in  this 
bill,  which  is  called  a  bill  to  give  cities  home  rule. 

Now,  then,  the  mayor  of  any  city  may  remove  the  commissioners 
for  cause  upon  charges  made  by  or  preferred  before  him.  A  copy 
of  such  charges  shall  be  served  upon  him,  etc.,  and  upon  such 
removal  he  shall  appoint. 


August  14.]  CONSTITUTIONAL  CONVENTION.  355 

Now,  it  seems  to  me  that  a  measure  of  home  rule  should  not 
require  any  labored  argument  on  behalf  of  the  able  men  that  made 
up  the  measure  of  the  Cities  Committee.  My  friend,  Mr.  Johnson, 
from  Kings,  and  the  gentleman  from  Erie  (Mr.  Becker),  trained 
lawyers,  would  have  easy  sailing  if  they  wanted  to  tell  this  Con- 
vention just  what  they  meant.  They  labored  for  two  hours  and  a 
half  in  one  case,  and  the  Lord  knows  how  long  in  the  other  — 
because  the  gentleman  has  not  given  up  the  floor  yet  —  to  explain 
what  this  bill  did  not  mean.  If  they  intended  to  give  us  home  rule, 
it  is  a  simple  every-day  proposition.  In  the  first  place,  is  it  for  any 
municipal  purpose?  Should  the  cities  have  control  of  the  police? 
They  say  no,  it  is  part  6f  the  police  power  of  the  city.  Why  no? 
We  are  not  in  doubt  as  to  the  meaning  of  the  police  power  of  the 
city.  The  Court  of  Appeals  has  defined  just  what  police  power 
means.  It  has  held  that  the  Legislature  has  the  inherent  right 
to  enact  laws  to  protect  the  life,  property  and  health  of  the  city, 
but  it  nowhere  says  that  the  police  power  shall  be  extended  to 
the  removal  of  a  constable  or  of  a  police  officer.  We  say  now,  let 
the  Legislature  pass  just  such  laws  as  they  please  and  which  they 
deem  wise  for  the  protection  of  the  life,  property  and  the  health  of 
the  city,  but  leave  the  management  and  the  carrying  out  thereof 
to  the  municipal  authorities. 

Now,  I  am  not  alone  in  this  Convention,  Mr.  Chairman;  mem- 
bers from  the  city  of  New  York  of  both  parties  will,  I  believe,  cheer- 
fully admit  that,  in  season  and  out  of  season,  no  paper  in  the  city 
of  New  York  has  fought  harder  for  home  rule  and  reform  in  munici- 
pal administration  than  the  New  York  Times.  It  is  disinterested 
in  this  matter.  It  looks  upon  the  proceedings  here  only  as  to  how 
they  will  affect  municipalities;  and,  in  writing  upon  this  particular 
subject,  it  says,  criticising  the  letter  of  Mayor  Low: 

"  His  argument  about  the  police  power  of  the  State  is  aside 
from  the  question.  The  State  exercises  its  police  power  to  the  full 
in  the  enactment  of  laws  and  in  provisions  for  their  execution,  the 
police  departments  of  cities  being  of  its  creation.  The  powers  of 
such  a  department  are  derived  from  the  State  and  defined  in  the 
laws.  The  question  is  whether  it  is  better  to  have  the  head  of  the 
police  department,  whose  functions  have  such  a  close  relation  to 
the  protection  of  the  people  and  the  property  exclusively  within 
its  jurisdiction,  responsible  to  those  people  through  authorities  of 
their  own  choice,  or  to  permit  the  executive  of  the  State  to  inter- 
vene and  take  control  of  it  virtually  at  will.  The  argument  in 
support  of  the  Governor's  power  of  removal  and  appointment  would 
justify  a  direct  and  continuous  control,  if  it  is  sound  at  all,  and,  if  it 


356  REVISED  RECORD.  [Tuesday, 

has  application  to  the  police  department,  it  could  be  extended  by 
the  same  reasoning  to  the  fire  department,  or  the  dock  department, 
or  any  other  branch  of  city  government." 

But,  says  the  chairman  of  the  committee,  the  police  are  merely 
peace  officers.  They  are'the  same  as  your  sheriffs  and  your  district 
attorneys.  Why,  sheriffs  and  district  attorneys  are  county  officers. 
Nay,  some  go  further  and  say  they  are  State  officers,  and  it  is  only 
right  that  the  Governor  should  have  the  power  to  remove  and 
appoint  to  fill  the  vacancy.  But  how  absurd  it  would  be  to  say 
that  in  some  counties  which  have  one  city  and  other  outlying  terri- 
tories, or,  perhaps,  some  have  more  than  one  city  in  a  county,  to 
say  that  the  mayor  of  any  particular  city  should  remove  a  sheriff 
or  should  remove  a  district  attorney.  The  power  must  be  some- 
where, and  it  rests,  as  it  properly  should  rest,  in  the  Governor.  But 
with  municipalities  they  are  matters  altogether  for  the  citizens  of 
the  particular  city.  They  are  interested  in  the  management  of  the 
police,  just  as  much  as  in  the  management  of  the  fire  department. 
If  the  mayor,  the  head  of  the  city,  should  refuse  to  do  his  duty,  then 
he  is  directly  responsible  to  the  people.  Now,  just  imagine,  gentle- 
men, what  that  means.  Here  we  talk  of  home  rule  for  cities,  and 
yet  the  next  mayor  to  be  elected,  if  you  please,  might,  on  the  first 
day  of  January,  appoint  four  police  commissioners,  and  on  the 
second  day  of  January  charges  preferred  by  anyone  might  be  made 
to  the  Governor  in  the  morning,  a  hearing  given  in  the  afternoon, 
that  night  removed  and  on  the  following  day  the  Governor  would 
appoint  the  successors  of  those  police  commissioners.  For  how 
long?  Until  the  next  general  election?  No,  not  at  all,  but  until 
the  term  of  office  of  the  mayor  of  the  city  had  expired.  Now,  this 
may  be  a  very  nice  thing,  to  control  cities  from  Albany,  but  it  is 
not  home  rule.  You  may  call  it  that,  if  you  please;  a  check  on 
cities.  A  bill  to  deprive  cities  of  home  rule.  All  right.  You  have 
the  power  to  pass  such  a  law,  but  you  must  not  go  to  the  people 
and  say,  here  you  have  been  asking  for  years  for  home  rule  and 
this  is  what  we  mean,  to  take  from  you  the  control  of  your  munici- 
pal affairs  and  giye  it  to  the  officials  in  Albany.  Now,  then,  some 
gentlemen  say  you  cannot  trust  the  municipalities  in  times  of  great 
emergency.  You  must  have  a  strong  central  government.  You 
must  have  some  one  in  Albany  to  place  his  hand  on  the  officers  of 
the  city,  or  otherwise  municipal  government  is  a  failure.  I  say, 
Mr.  Chairman,  if  you  admit  that,  then  you  admit  that  our  govern- 
ment is  a  failure.  I  take  my  stand  along  with  the  common  people 
of  the  land.  I  believe  that  the  common  people  of  the  municipalities 
can  be  trusted  with  municipal  government.  I  say  it  is  wrong  to 


August  14.]  CONSTITUTIONAL  CONVENTION.  357 

say  that  in  times  of  great  emergency  the  common  people,  or  the 
representatives  of  the  common  people,  if  you  please,  would  not  be 
great  enough  to  attend  to  the  duties  intrusted  to  them ;  therefore,  we 
must  take  that  power  from  your  municipality  and  leave  it  with  the 
Governor. 

Now,  if  we  are  going  to  make  a  Constitution,  based  on  actual 
experience,  as  to  whether  the  police  force  of  the  city  of  New  York, 
if  you  please,  is  able  to  cope  with  great  emergencies,  then  you  have 
only  got  to  go  back  in  memory  to  all  the  strikes  since  1872.  We 
have  had  many  strikes  in  the  city  of  New  York,  but  we  have  never 
called  out  the  militia  on  any  occasion  to  quell  those  strikes.  The 
municipal  authorities,  with  the  aid  of  the  police  officers,  have  been 
able  to  keep  the  people  right,  and  to  compel  obedience  to  the  laws. 

But  it  is  said  that  this  would  be  secession.  Give  to  the  munici- 
palities local  self-government;  give  to  the  cities  of  the  State  of 
New  York  the  right  to  govern  themselves,  then  you  give  them 
the  right  to  secede  from  the  State.  These  are  strange  words^  to 
hear  in  the  year  1894.  To  say  that  this  State  to-day  lives  by  virtue 
of  law  is  something  I  cannot  agree  to.  I  believe  to-day  that  the 
State  of  New  York  is  loved  and  revered  by  the  sixty-one  per  cent 
of  our  population  who  live  in  cities;  and,  to  say  that  by  extending 
home  rule  to  these  cities  that  will  change  the  nature  of  sixty-one 
per  cent  of  your  population,  and  that  they  would  become  seces- 
sionists and  want  to  secede  from  the  State,  is  to  make  a  statement 
that  I  claim  will  not  bear  investigation.  I  believe  the  people  of  the 
cities  glory  in  the  prosperity  of  the  State;  want  to  see  it  just 
as  it  is;  want  to  see  it  march  on  in  its  career  and  to  remain  for  all 
time  the  Empire  State  of  the  Union. 

Now,  another  section,  Mr.  Chairman,  is  for  the  purpose  of  secur- 
ing fair  elections.  Everyone  here,  every  man  in  the  State,  be  he 
Democrat  or  Republican,  believes  in  fair  and  honest  elections.  We 
want  fair  elections  and  we  want  an  honest  count  of  the  vote.  Now, 
what  is  to  be  done?  It  is  not  necessary  for  us  to  do  anything  more 
than  to  state  the  principle.  Let  us  say  that  throughout  the  State 
there  shall  be  equal  majority  and  minority  representation,  and  no 
laws  shall  be  passed  impairing  such  equality  of  representation. 
Now,  it  may  not  be  the  intention  of  the  committee,  but  the  impres- 
sion will  go  out  among  the  people,  if  we  pass  the  bill  as  submitted 
by  the  committee,  that  it  is  simply  a  grab  for  patronage.  We  do 
not  want  that,  and  it  is  not  the  intention  of  the  committee.  The 
committee  wants  to  secure  fair  and  honest  elections,  and  we  say 
God  speed,  and  we  will  help  you  all  we  can.  But  we  say  you  may 


358  REVISED   RECORD.  [Tuesday, 

safely  leave  to  the  Legislature  the  details  of  carrying  out  your 
scheme. 

Now,  I  have  stricken  out  of  my  substitute  all  of  section  4,  which 
would  make  the  mayors  of  cities  deputy  Governors,  which  would 
give  them  the  right  on  certain  occasions  to  veto  legislation. 
I  believe  that  if  we  are  going  to  give  power  to  the  municipalities, 
that  it  should  be  absolute.  What  the  municipalities  want  is 
"  Hands  off  at  Albany."  They  want  to  be  divorced  from  Albany 
legislation;  and  in  this  connection  I  appreciate  fully  the  difficulty 
that  any  member  of  this  Convention  has  in  opposing  any  amend- 
ment to'  a  bill  when  proposed  by  the  President  of  the  Convention. 
His  absolute  fairness  to  all  members  of  this  Convention  has  won 
the  hearts  and  the  affections  of  the  members  of  the  Convention. 
The  first  thing  in  order  to  secure  legislation  in  any  body  of  men  is 
to  first  win  their  hearts  and  affections,  and,  if  you  do  that,  then  what- 
ever you  propose  is  apt  to  be  carried,  because  of  that  reputation. 
Nojv,  then,  he  has  proposed,  as  an  amendment,  that  the  municipality 
shall  have  control  over  certain  defined  matters ;  but  that  the  Legisla- 
ture may,  with  the  consent  of  the  mayor,  pass  any  law  relating  to 
those  particular  subjects  that  in  the  third  section  you  leave  to 
municipalities.  If  the  mayor  should  refuse  his  consent,  then  three- 
fifths  of  the  Legislature  may  pass  a  law  affecting  those  particular 
subjects.  Now,  that  is  all  very  nice,  but  it  is  not  home  rule.  You 
may  call  it,  if  you  will,  a  check  upon  New  York  city,  or  a  check 
upon  the  cities  of  this  State,  but  it  is  not  home  rule,  and,  if  you 
intend  to  give  the  people  of  the  cities  home  rule,  give  it  to  them 
absolutely. 

Now,  another  suggestion  that  I  make,  and  it  is  taken  largely  from 
the  suggestions  offered  by  Mr.  Jenks  the  other  day:  nothing  in 
this  article  contained  shall  limit  or  affect  the  power  of  the  Legisla- 
ture to  consolidate  contiguous  cities  or  annex  contiguous  territory 
to  any  city,  or  to  make  or  provide  for  the  making  of  a  charter  of 
any  city  created  by  such  consolidation;  but  no  such  law  shall  be 
passed  until  a  majority  of  the  electors  of  each  city  or  territory  to 
be  affected  thereby  have  decided  in  favor  of  such  consolidation. 
The  Legislature  may  make  provision  whereby  the  question  of  the 
consolidation  of  contiguous  cities  or  the  annexation  of  contiguous 
territory  to  any  city  may,  from  time  to  time,  be  submitted  to  the 
electors  thereof. 

Now,  it  seems  to  me  that  that  speaks  for  itself.  It  would  be 
manifestly  unfair  to  leave  with  the  Legislature  the  power  to  say 
at  any  particular  time  that  two  cities  shall  be  consolidated,  even  if 
the  people  of  neither  city  wanted  it.  Let  the  people  of  both  cities 


August  14.]  CONSTITUTIONAL  CONVENTION.  359 

say  whether  they  want  to  be  consolidated  or  not,  and,  if  a  majority 
of  the  people  in  each  city  shall  vote  in  favor  of  consolidation,  then 
let  the  Legislature  consolidate  them  under  these  general  laws. 

Now,  Mr.  Chairman,  in  conclusion,  I  desire  to  thank  the  Con- 
vention for  its  attention.  I  hope  that  this  Convention  will,  contrary 
to  the  general  expectation,  pass  some  bill  which  will  give  home 
rule  to  cities.  It  is  a  great  question  and  I  think  it  should  be 
decided.  It  should  be  above  party;  and,  if  the  members  of  this 
Convention,  irrespective  of  party,  rise  to  the  occasion  and  give  to 
the  cities  of  the  State  the  relief  they  ask,  then  I  believe  we  will  have 
done  a  great  work  for  the  municipalities  of  the  State. 
Mr.  Chairman,  I  ask  leave  to  offer  this  substitute  — 
Mr.  C.  B.  McLaughlin  —  Mr.  Chairman,  will  the  gentleman  per- 
mit me  to  ask  him  a  question?  As  I  understood  the  gentleman 
from  New  York,  speaking  of  section  3,  he  specified,  among  the 
subjects  upon  which  there  should  be  no  control  exercised  by  the 
Legislature,  State  education? 

Mr.  Mulqueen  —  Yes,  sir. 

Mr.  McLaughlin  —  Does  the  gentleman  mean  by  that  that  he 
would  exempt  the  city  of  New  York  from  all  of  the  provisions  now 
made  by  the  State,  in  reference  to  the  education  of  the  children  of 
other  portions  of  the  State? 

Mr.  Mulqueen  —  No,  sir;  I  would  not;  neither  would  I  interfere 
with  the  present  system  of  the  Superintendent  of  Education.  But 
in  the  management  of  the  erection  of  school  buildings,  in  the 
appointment  and  compensation  of  teachers,  I  think  another  rule 
should  apply* 

Mr.  McLaughlin  —  One  more  question,  please.  Under  the  gen- 
eral statutes  of  the  State,  as  I  now  understand  them,  the  State  at 
present  has  control  of  school  buildings  to  a  certain  extent,  especially 
with  reference  to  their  sanitary  condition,  etc.  Would  the  gentle- 
man have  the  city  of  New  York  exempted  from  the  provisions  of 
that  statute? 

Mr.  Mulqueen  —  Mr.  Chairman,  I  call  the  attention  of  the  gentle- 
man to  the  substitute  which  I  have  offered.  By  reading  that  he  will 
see  that  all  that  matter  is  left  with  the  State. 

Mr.  Francis  —  Mr.  President,  criticism  is  useful,  but  an  agency 
of  usefulness  may  be  exercised  to  the  excess  of  perversion.  Techni- 
calities comprise  elements  important  for  the  elucidation  of  a  subject 
or  proposed  law  as  to  meaning  and  intent.  But  technicalities  may 
be,  often  are,  ingenious  inventions  to  confuse  and  mislead.  After  all, 


360  REVISED  RECORD.  [Tuesday, 

plain  words,  which  the  common  mind  may  understand,  concise 
statements,  clean-cut  and  simple,  are  the  only  safe  guide  to  accurate 
conclusions.  The  juggling  with  words  may  be  an  artifice  for 
stringing  out  glittering  generalities  to  capitivate  the  imagination, 
and  so  make  for  eccentric  and  not  infrequently  injurious  results. 

In  respect  of  all  this,  my  generalization  resolves  itself  into  this: 
Common  sense,  the  calm  exercise  of  judgment,  as  it  is  brought  to 
bear  in  dealing  with  business  problems  that  daily  confront  us,  is 
the  practical,  potential  force  that  should  have  a  dominating  expres- 
sion here.  Such  is  the  spirit  with  which  we  must  address  ourselves 
to  the  work  of  seeking  a  solution  of  one  of  the  most  vexed  and 
complicated  problems  of  our  time  —  that  of  wise,  safe,  honest  and 
fair  municipal  government.  Such  is  the  spirit  which  I  believe 
controls  this  Convention. 

With  reference  to  the  plan  submitted  in  the  form  of  a  constitu- 
tional amendment  to  provide  home  rule  for  cities,  the  aim  is  to  meet 
a  difficulty  that  is  clearly  apparent  to  discerning  and  intelligent 
minds  It  is  evident,  that  as  matters  now  stand,  the  Legislature  of 
this  State  is  largely  occupied  with  labors  that  make  it  a  sort  of 
higher  common  council  for  our  cities.  The  plan  proposed  by  the 
Committee  on  Cities  would  do  away  with  this  by  granting  to  the 
municipalities  control  of  certain  matters  purely  local,  to  be  carefully 
defined  in  the  fundamental  law.  At  the  same  time  the  sovereignty 
of  the  State  should  be,  must  be,  rigidly  guarded  and  distinctly 
affirmed. 

This,  it  seems  to  me,  would  combine  with  the  essential  principle 
of  State  supremacy  a  recognition  of  the  right  of  communities  to 
self-government  within  such  limits  as  would  be  regarded  as  proper, 
reasonable  and  expedient.  The  relief  given  to  the  Legislature  from 
an  undue  pressure  of  work,  involving  matters  with  which  the 
majority  cannot  be  fully  familiar,  would,  if  practicable,  of  itself 
prove  a  public  benefaction.  We  might  justly  expect,  as  one  of  the 
most  gratifying  results,  more  careful  deliberation  upon  questions 
affecting  the  general  interests  and  welfare  of  the  people.  There 
would  be  better  legislation,  with  more  regard  for  economy,  and 
fewer  objectionable  and  hasty  enactments.  Many  defective  and  ill- 
advised  laws  may  be  attributed  to  the  fact  that  they  were  passed  at 
a  time  when  legislative  attention  was  so  absorbed  with  local  meas- 
ures as  to  make  proper  consideration  of  them  impossible. 

With  reference  to  the  provision  relating  to  the  police  of  cities,  we 
have  the  principle  of  State  sovereignty  asserted  in  its  most  salutary 
form  of  expression.  More  and  more,  under  the  varying  phrases  of 
municipal  growth,  the  police  of  our  cities  has  come  to  be  the 


August  14.]  CONSTITUTIONAL  CONVENTION.  361 

potential  factor  for  good  or  evil  government.  Place  its  control  in 
impartial  hands,  and  it  is  an  agency  for  pure  elections,  public  peace 
and  order,  and  the  effective  repression  of  crime.  Give  it  over  to  the 
mastery  of  unprincipled  and  designing  men,  and  it  is  prostituted 
to  the  basest  partisan  uses  and  employed  to  foster  fraud  in  elections, 
destroy  the  liberties  of  the  people  and  promote  disorder  and  cor- 
ruption in  an  ever-widening  circle. 

It  is  the  duty  of  the  State  to  guard  the  freedom,  rights  and  prop- 
erty of  the  citizen.  In  no  way  can  this  be  more  effectually  done 
than  by  retaining  its  grasp  on  the  police  power  of  cities.  This  is 
provided  for  in  the  amendment  now  under  discussion,  without 
unduly  infringing  on  the  home-rule  prerogative  of  the  municipality. 
The  right  to  remove  the  head  of  the  police  in  any  city  for  cause  is 
granted  to  the  Governor,  just  as  he  now  has  the  power  to  remove 
sheriffs,  county  clerks  and  district  attorneys;  and,  as  in  the  case 
of  these  officials,  to  fill  vacancies  for  the  term.  Can  any  reason  be 
urged  against  this  policy  which  may  not  be  used  with  equal  force 
as  an  argument  for  depriving  him  of  a  power  he  has  long  enjoyed? 
On  the  other  hand,  would  not  the  fact  that  above  the  police  force, 
clothed  with  this  authority,  stands  the  chief  executive  of  the  State, 
prove  a  strong  moral  safe-guard,  a  legal  power,  in  fact,  against 
police  wrong-doing? 

That  the  State  should  lend  its  august  influence  to  the  cause  of 
fair  and  pure  elections  is  a  proposition  so  self-evident  that  it  needs 
little  exposition  here  now.  Embodied  in  the  fundamental  law,  a 
declaration  to  this  effect  carries  with  it  a  force  of  solemn  and 
majestic  import.  It  is  the  voice  of  a  free  people  affirming  the  prin- 
ciple that  the  ballot-box,  the  fountain  of  popular  rule,  must  be  kept 
free  from  pollution.  Such  a  declaration  is  worthy  of  this  great  State 
and  its  enlightened  and  virtuous  citizens.  We,  as  their  representa- 
tives, and  speaking  in  their  behalf,  cannot  do  for  them  a  nobler  duty 
than  to  adopt  this  provision  and  submit  it  for  their  approval  at  the 
polls. 

The  plan  proposed  by  the  Committee  on  Cities  goes  just  as  far 
as  safety  to  paramount  public  interests  would  warrant  in  conceding 
the  principle  of  home  rule.  It  imposes  needed  limitations;  it  retains 
the  mastery  of  the  State  in  absolutely  essential  things.  It  holds  in 
check  the  unbridled  partisanship  that  would  make  the  police  power 
subservient  to  its  lawless  behests.  It  prescribes  the  methods  for 
assuring  fair  elections  —  an  honest  ballot  and  a  truthful  count.  It 
gives  home  rule  for  cities  upon  the  same  discriminating  basis  as 
such  rule  is  now  applied  in  county  governments  by  boards  of 
supervisors.  But  where  intolerable  abuses  occur,  as  in  police  rnal- 


362  REVISED   RECORD.  [Tuesday, 

administration,  accountability  is  exacted  to  the  sovereign  power, 
the  State.  The  State  may  yield  what  is  safe  and  proper;  but  it 
must  not  abnegate  its  sovereignty  to  the  peril  of  the  protection  of 
citizenship,  life,  liberty  and  property,  which  it  is  bound  to  maintain. 

Another  commendable  feature  of  this  committee's  plan  is  the 
holding  of  municipal  elections  on  a  uniform  day,  so  far  as  may  be, 
separated  by  many  intervening  months  from  State  and  national 
political  contests.  The  influence  of  this  would  be  to  concentrate 
the  public  thought  upon  good  business  in  this  relation,  so  repelling 
the  passion  of  pernicious  partisanship.  A  blessed  thing  it  would  be 
if  one  election  we  can  have  for  the  year  divested  of  excessive  party 
spirit  and  with  the  best  citizenship  going  to  the  front  in  contention 
for  honest,  business-like  municipal  administration,  such  election 
being  the  only  one  for  the  year  in  which  it  is  held. 

The  luminous  exposition  of  the  committee's  plan  by  its  chair- 
man has  had,  I  trust,  the  careful  consideration  of  the  members  of 
this  Convention.  And,  co-operating  with  him  in  the  committee's 
earnest  labors,  I  can  testify  to  the  sincere  effort  made  for  a  fair 
and  practicable  solution  of  the  very  difficult  problem  of  just  gov- 
ernment for  our  cities. 

Mr.  Emmet  —  Mr.  President,  before  addressing  myself  briefly 
and,  I  fear,  censorily,  to  a  statement  of  my  views  on  this  important 
problem,  I  desire  to  say  that  I  have  a  full  appreciation  of  the 
immensity  of  the  task  undertaken  by  the  Committee  on  Cities,  and 
the  difficulties  which,  under  the  most  favorable  circumstances,  He 
in  the  path  of  a  satisfactory  fulfillment  of  that  task.  T  do  not  recog- 
nize it  as  a  duty,  much  less  as  a  right,  of  the  minority  of  this  body 
to  undertake  the  consideration  of  the  cities  report  in  a  spirit  of 
preconceived  hostility  to  it;  nor  do  I  believe  that  the  individual 
responsibility  of  any  member  for  the  satisfactory  outcome  of  our 
labors  upon  this  problem  are  materially  lessened  because  he  is  a 
Democrat.  Most  of  the  possibilities  of  municipal  reform  lie  beyond 
and  outside  the  scope  of  constitutional  enactments.  Many  evils 
from  which  the  dwellers  in  cities  now  suffer  require  experimental 
treatment,  whose  appropriate  source  is  in  the  State  Legislature. 
Many  of  these  evils,  too,  are  of  a  sort  amenable  to  no  law,  because 
they  are  part  of  human  nature  itself.  The  Cities  Committee's 
power  for  good  being  thus  limited  and  their  scope  thus  narrowed, 
it  became  an  imperative  duty  upon  the  part  of  the  majority  and 
minority  alike  to  aid  the  legitimate  work  of  the  committee  as  fully 
as  possible,  and  assist,  as  far  as  may  be,  in  satisfying  the  reasonable 
and  proper  demands  for  municipal  reform  which  have  been  made 
upon  it.  It  also  became  our  duty  to  fearlessly  criticise  those  por- 


August  14.]  CONSTITUTIONAL  CONVENTION.  363 

tions  of  the  report  which  treat  of  legislative  or  experimental  reforms, 
without  regard  to  the  effect  of  the  propositions  upon  the  party 
affiliations  of  delegates.  The  problem  is  immense  enough  to  lift 
us  above  the  realm  of  partisanship  and  to  demand  the  fullest  patriot- 
ism from  all  who  attempt  its  solution. 

I  am  opposed,  sir,  to  the  adoption  of  the  Cities  Committee's 
amendment  in  its  present  form,  because  I  believe  that  the  committee 
has  attempted  to  do  more  than  it  had  any  right  to  attempt,  and  that 
in  its  desire  to  create  a  panacea  for  all  municipal  evils  it  has  lost 
sight  of  those  limitations  to  which  constitutional  legislation  must 
always  be  subject.  In  the  goodness  of  its  heart,  this  committee  has 
been  generous,  even  prodigal,  in  its  answers  to  the  suppliants  at 
its  gates,  and  has,  in  my  humble  judgment,  forgotten  that  many 
of  the  prayers  to  which  it  has  given  favorable  attention  should 
have  been  addressed  to  some  other  dispenser  of  reform  than  a 
Constitutional  Convention.  It  has  attempted  what,  among  Con- 
stitution-makers, should  be  regarded  as  an  unpardonable  sin  —  the 
injection  of  experimental  legislation  into  our  organic  law.  Let  me 
say  that  these  criticisms  are  directed  almost  entirely  to  one  feature 
of  their  work,  the  so-called  home-rule  idea,  upon  which  I  desire  to 
speak  briefly. 

The  pursuit  by  the  nineteenth  century  statesman  of  that  volatile 
and  intangible  thing,  which  has  been  called  home  rule,  is,  to  me, 
one  of  the  most  curious  features  of  modern  political  activity. 
What  is  home  rule?  I  fancy  it  would  puzzle  her  most  ardent 
admirers  to  describe  the  charms  of  this  enchantress,  whose  wooing 
has  ever  been  attended  with  all  the  labors  of  Hercules  and  the  tor- 
tures of  Tantalus.  About  the  only  conceded  fact  about  home  rule 
is  that  no  two  people  have  been  known  to  agree  upon  any  scheme 
of  details  for  its  accomplishment,  although,  so  long  as  it  remains 
intangible  and  undefined,  all  are  willing  to  subscribe  to  the  theory 
embodied  in  this  mystic  phrase.  As  an  ideal,  it  meets  the  approba- 
tion of  all ;  but  once  you  snatch  it  from  the  realm  of  untried  theory, 
clothe  it  in  what  you  believe  to  be  its  appropriate  garb,  attach 
those  details  which,  to  you,  seem  proper,  and  present  it  to  the 
criticism  of  your  fellows,  instantly  your  conception  of  those  magic 
catch-words  is  vilified,  jeered  at  and  spat  upon,  and  yourself 
excepted,  there  is  none  so  poor  as  to  do  it  reverence. 

I  have  been  trained  to  a  traditional  reverence  of  this  phrase, 
applied  to  different  conditions,  perhaps,  but  used  in  the  exact  sense 
in  which  Mr.  Johnson  used  it,  when,  in  printer's  ink,  he  placed  it 
as  a  caption  to  his  proposed  amendment.  Yet,  notwithstanding 
my  preconceived  friendliness  to  the  idea  and  desire  to  support  the 


364  REVISED   RECORD.  [Tuesday, 

committee's  conception  of  it,  I  find  myself  in  absolute  opposition  to 
the  entire  portion  of  the  cities  amendment  which  deals  with  this 
subject. 

One  would  suppose,  from  the  frequency  with  which  this  phrase 
has  been  suggested  as  a  panacea  for  municipal  evils,  that  home  rule 
was  a  privilege  at  present  unknown  to  American  cities.  In  my 
opinion  it  has  been  the  predominant  characteristic  of  our  entire 
system  of  government,  and  is  now  enjoyed  in  as  abundant  measure 
as  is  consistent  with  the  theory  upon  which  our  State  governments 
are  conducted.  Cities  now  possess  their  own  local  legislatures, 
which,  under  ordinary  circumstances,  attend  to  all  the  municipal 
necessities  within  their  boundaries,  and  enjoy  the  fullest  liberty 
compatible  with  a  strong  and  virile  central  government.  It  is 
true  that,  in  the  wisdom  of  the  broad-minded  men  who  constructed 
our  present  Constitution  and  those  which  preceded  it,  the  natural 
right  of  the  State  at  large  to  exercise  a  power  of  supervision  over 
the  entire  State,  including  cities,  has  never  yet  been  tampered  with. 
But  it  is  an  absolutely  false  conception  of  the  extent  to  which  this 
power  has  been  used  to  suppose  that  at  any  stage  of  our  State 
history  the  Legislature  has  ever  systematically  attempted  to  con- 
trol and  direct  the  affairs  of  municipalities  in  opposition  to  the 
wishes  of  the  municipalities.  I  do  not  mean  to  say  that  power  to 
do  so  has  not  at  times  been  misused,  or  that  occasional  sporadic 
outbreaks  of  pernicious  local  legislation  have  not  caused  just  resent- 
ment in  the  communities  affected.  It  is  a  matter  of  known  history 
that  these  abuses  have  existed,  though  never  continually  or  for  a 
length  of  time.  They  have  existed  always  as  lone  and  solitary 
instances  of  abused  power,  and  their  importance  has  been  exagger- 
ated far  beyond  its  real  significance  by  contrast  with  local  legisla- 
tion of  quite  another  sort,  which  has  proven  salutary,  in  fact, 
invaluable,  on  more  than  one  occasion  and  to  more  than  one  local- 
ity. For  one  iniquitous  local  measure  which  the  Legislature  passes, 
against  the  protests  of  the  citizens  affected,  the  annals  of  our  State 
can  show  a  score  of  enactments  whose  passage  has  safe-guarded 
the  interests  of  otherwise  unprotected  taxpayers,  and  which  has 
resulted  in  the  rout,  horse  foot  and  dragoons,  of  municipal  rings, 
against  which  the  good  citizen  possessed  no  effective  weapon  but 
his  right  to  appeal  to  the  State  Legislature.  Certainly,  in  the 
present  condition  of  municipal  government  throughout  the  State, 
it  would  impress  me  as  an  act  of  the  sheerest  stupidity  and  political 
blindness  to  deprive  dwellers  in  cities  of  this  right  to  which  they 
have  so  often  successfully  appealed  as  the  one  available  means  of 
dragging  from  the  sloughs  of  despond  communities  whose  energies 


August  14.]  CONSTITUTIONAL  CONVENTION.  365 

were  paralyzed  and  whose  power  for  self-protection  was  almost 
gone.  As  a  practical  expedient  to  insure  good  government,  or,  at 
least,  to  make  its  attainment  possible,  I  believe  that  the  right  to 
solicit  State  assistance  and  aid  is  most  important  and  should  never 
be  absolutely  closed,  even  if  the  optimistic  views  of  municipal 
reformers  are  realized,  and,  through  the  mediation  of  separate  elec- 
tions and  minority  representation,  our  city  governments  became 
instantly  better. 

As  a  theory,  I  think  Mr.  Johnson's  scheme  is  as  unsound  as  it 
would  be  in  its  practical  workings.  One  of  the  most  legitimate 
of  the  criticisms  which  have  been  leveled  against  our  institutions 
has  been  against  that  tendency  throughout  the  Union  towards  a 
multiplicity  of  practically  independent  law-making  bodies,  and  the 
complexity  and  multiplicity  of  legislations  thereby  created. 
Indeed,  one  of  the  professed  purposes  of  Mr.  Johnson's  scheme  is 
to  prevent  complexity  in  legislation.  I  should  suppose  that  in  its 
home-rule  features  it  tended  to  accentuate  the  evil,  instead  of 
reducing  it,  for  it  increases  indefinitely  the  number  of  independent 
legislatures  throughout  the  State,  each  of  which  may  pass  laws  — 
some  of  them  for  communities  in  which  the  entire  State  is  directly 
interested  —  with  a  free  hand  and  no  fear  of  interference. 

It  is  appalling  to  think  of  the  expansive  effect  such  a  system 
would  have  upon  irresponsible  legislation  within  our  boundaries  — 
of  the  fearful  and  wonderful  variety  in  legislation  it  would  promote. 
The  immediate  and  irresistible  effect  of  such  a  system  would  be 
to  destroy  much  of  the  present  force,  vigor  and  integrity,  with 
which  our  great  sovereign  State  is  invested.  There  could  be  no 
other  effect  if  the  law-making  body  of  the  State  is  to  be  stopped 
from  possessing,  and  upon  occasions,  using  the  fullest  power  over 
any  citizen  and  every  locality.  I  believe  that  a  great  educational 
work  has  been  performed  during  the  past  three  months  on  city 
problems.  I  think  I  do  not  overestimate  the  extent  of  the  educa- 
tional influence  of  intelligent  discussion  and  business-like  considera- 
tion, when  I  venture  the  assertion  that  this,  the  most-talked  of 
avenue  of  municipal  reform,  has  lost  caste  of  late,  and  that  home 
rule,  so  attractive  as  an  ideal,  is  commencing  to  be  looked  upon, 
even  in  the  camps  of  its  supporters,  as  too  advanced  and  experi- 
mental to  be  incorporated  into  the  State  Constitution. 

For  my  part,  I  shall  never  consent,  with  vote  or  voice,  to  the 
State's  washing  its  hands  of  all  responsibility  for  its  great  cities. 

It  is  pleasanter  for  me,  Mr.  Chairman,  to  turn  from  this  feature 
of  the  Cities  Committee's  report,  to  which  I  am  entirely  opposed, 
and  pledge  my  support  to  that  committee  in  their  efforts  to  secure 


366  REVISED  RECORD.  [Tuesday, 

the  adoption  of  the  sound,  practicable  and  healthy  reforms  for  which 
they  have  provided.  But  fear  of  infringing  on  abler  speakers  will 
not  permit  me  to  waste  time  in  superfluous  praise  of  features  which 
I  think  are  worthy  of  the  highest  praise. 

Stated  briefly,  my  idea  is  that  the  portion  of  the  cities  amend- 
ment relating  to  the  separation  of  local  and  State  elections  is  a 
reform  of  the  wisest  and  most  appropriate  sort,  perfect  in  theory 
and  capable  of  much  practical  good.  So  apparent  and  self-evident 
are  the  objections  to  the  present  system  of  conducting  our  city 
elections  that  it  is  needless  to  enumerate  them.  It  is  sufficient  for 
me  to  say  that  the  language  and  ideas  of  the  committee's  report 
on  this  subject  are  entirely  satisfactory  to  me.  I  am  glad  of  an 
opportunity  to  state  also  that  I  am  in  entire  sympathy  with  the 
theory  of  minority  representation.  While  I  think  it  would  be 
imprudent  in  the  present  development  of  this  theory  for  us  to  make 
its  adoption  mandatory,  I  am  in  favor  of  making  it  possible  and 
believe  that  it  would  go  far  toward  remedying  existing  evils.  It  is 
not  un-democratic  or  un-American.  It  is  not  an  infringement  of 
majority  rights,  for  it  protects  majorities,  as  well  as  minorities. 
Minorities,  which  inaugurate  every  great  reform  and  plant  the  seed 
of  every  flower  of  progress,  are  deserving  of  more  consideration 
than  they  sometimes  receive.  They  are  apt  to  be  too  ruthlessly 
overridden  and  their  activity  is  too  valuable  a  function  of  political 
economy  to  make  it  proper  that  it  should,  in  any  way,  be  curtailed. 
All  great  reforms  have  sprung  from  minorities.  Cobden  was  a 
minority  of  one  in  the  propagation  of  free-trade  in  England.  Majori- 
ties left  to  themselves  are  too  apt  to  forget  the  demands  of  progress 
and  rest  content  with  present  conditions. 

Minorities  keep  the  flame  of  healthy  progress  alive  and  burning, 
and  I  am  in  favor,  by  securing  the  certainty  that  the  minority  voice 
will  always  be  heard  in  municipal  councils,  of  extending  their  oppor- 
tunities for  good  to  the  fullest  extent. 

These,  Mr.  Chairman,  very  inadequately  stated,  are  my  views 
upon  what  this  Convention  may  and  may  not,  with  propriety,  do 
towards  solving  the  municipal  problem.  The  question  is  of  superla- 
tive importance;  it  has  agitated  the  patriotic  pride  of  Americans  for 
many  years,  for  it  pertains  to  the  one  weakness  which  has  hitherto 
developed  in  our  system  of  government.  Whatever  we  do,  we  can 
only  make  a  little  easier  the  exercise  of  a  power  which  communities 
have  always  possessed,  but  it  is  to  be  hoped  that  with  a  smoother 
path  there  will  be  an  immediate  tendency  toward  the  creation  of  a 
local  public  spirit,  healthy  enough  to  take  advantage  of  whatever 
we  may  accomplish.  To  its  attainment  we  may  look  hopefully,  yet 


August  14.]  CONSTITUTIONAL  CONVENTION.  367 

soberly;  no  overweaning  confidence,  yet  no  despair;  much  patience 
but  unshaken  faith,  for  our  trust  rests  upon  everlasting  foundations. 
(Applause.) 

Mr.  Bowers  —  Mr.  Chairman,  the  Convention  is  engaged  in 
Committee  of  the  Whole  in  the  discussion  of  one  of  the  most  import- 
ant, if  not  the  most  important,  questions  it  has  to  deal  with.  It 
has  discussed  it,  as  it  has  every  other  proposition  that  has  thus  far 
been  brought  forward,  on  entirely  non-partisan  grounds,  and  with 
a  desire  to  accomplish  results  that  shall  be  most  beneficial  to  the 
great  cities  of  the  State.  For  my  own  part,  I  intend  to  continue 
the  discussion  on  the  high  plane  on  which  the  subject  should  be 
put,  even  though  it  becomes  my  duty  to  criticise,  in  frank  and  plain 
terms,  many  of  the  propositions  that  have  been  advanced  in  the 
report  of  the  Committee  on  Cities,  and  then  to  lay  before  the  mem- 
bers of  this  Convention,  as  I  would  were  I  in  one  of  the  sub-com- 
mittees of  the  Convention,  some  of  the  difficulties  under  which  the 
cities  now  suffer,  and  ask  if  we  cannot  devise  some  plan  which 
shall  remove,  at  least  in  part,  those  difficulties. 

In  the  report  which  is  sent  by  the  Committee  on.  Cities,  with  the 
proposed  constitutional  amendment,  are  numerous  statements  that 
that  committee  have  concluded  that  home  rule  in  some  form  should 
be  given  to  the  cities  of  the  State.  Had  their  proposed  amendment, 
in  any  degree,  equaled  the  views  they  expressed  in  the  report,  it 
must  have  been  satisfactory  to  the  residents  of  the  cities  of  the  State. 
Unfortunately,  we  are  forced  into  the  position  of  breaking  down 
their  report,  which,  I  submit,  does  nothing  of  the  kind,  and  then 
taking  such  parts  of  it  as  do  deal  with  that  subject  fairly,  and  build- 
ing up  therefrom.  Conceded,  then,  is  the  proposition  that  home 
rule  in  some  form  should  be  given  to  cities,  but  when  we  come  to 
deal  with  such  a  conceded  proposition  as  the  handiwork  of  gentle- 
men who  tell  us  on  the  floor  of  this  Convention  that  the  good  people 
of  the  great  cities  are  in  a  hopeless  minority,  we  cannot  expect 
that  the  result  of  their  labors  will  deal  with  the  subject  as  it  ought 
to  be  dealt  with.  For,  it  is  not  true,  and  no  man  in  any  of  the 
great  cities  can  sit  silent  in  this  Convention  and  not  deny  the  asser- 
tion that  the  good  people  are  in  the  minority.  I  assert  now  that 
the  good  people  in  any  of  the  great  cities  of  the  State  are  in  quite 
as  large  a  majority  as  the  good  people  in  any  of  the  rural  districts, 
and  quite  as  capable  of  governing  themselves.  If  these  gentlemen 
could  have  drawn  their  report  from  some  other  standpoint  than 
the  standpoint  of  dealing  with  the  majority  of  the  population  of 
the  State  with  a  restraining  hand  — 


368  REVISED   RECORD.  [Tuesday, 

Mr.  J.  Johnson  —  Will  the  gentleman  allow  me  to  interrupt  him? 
There  is  no  such  thought  or  sentiment  in  the  report,  and  no  such 
thought  or  sentiment  adopted  by  the  committee.  As  for  myself,  I 
believe  they  are  in  the  vast  majority. 

Mr.  Bowers  —  I  am  very  glad  to  hear  that  statement  from  the 
chairman  of  the  Committee  on  Cities.  It  will  be  recalled  that  on 
the  floor  of  this  House  his  apparently  principal  assistant  in  the 
Committee  on  Cities  announced  the  proposition  I  have  named. 
Assuming,  then,  under  the  denial  of  the  chairman  of  the  Committee 
on  Cities,  that  they  were  not  thus  influenced,  let  us  proceed  to  a  dis- 
cussion of  their  bill  and  find  out  how  far  it  sustains  the  views 
expressed  in  their  report.  There  are  six  clauses  in  the  bill.  I  make 
no  reference  to  the  seventh,  which  is  not  material  for  the  purposes 
of  this  discussion;  and  there  seems  to  be  two  sections  which  are 
given  up  to  what  is  called  home  rule.  Now,  let  us  deal  with  this 
first,  and  see  if  anything  whatever  is  offered  to  the  cities.  In  sec- 
tion 3  it  is  specified  that  general  laws  shall  be  passed,  to  apply,  I 
presume,  to  all  cities  upon  certain  propositions.  "  Streets  and  high- 
ways "  are  No.  I.  I  wish  to  bring,  at  this  juncture,  to  the  attention 
of  the  Committee  on  Cities  the  fact  that  they  will  find  in  the  second 
volume  of  the  Laws  of  1882  an  act  called  the  Consolidation  Act  of 
the  city  of  New  York;  and  now,  speaking,  as  I  must  speak,  in 
reference  to  the  affairs  of  that  city,  with  which  I  am  most 
acquainted,  I  want  to  say  that  that  act  gives  that  city  all  the  author- 
ity it  needs  as  to  streets  and  highways.  No.  2  refers  to  "  parks 
and  public  places."  There  is  an  act  in  the  statute  book  giving 
authority,  as  I  recall  it,  to  the  municipal  authorities  to  lay  out  parks 
in  the  tenement  districts,  with  a  very  large  expenditure  each  year, 
and  the  only  possible  power  which  this  confers  would  be  the  power 
to  go  into  the  annexed  districts  and  buy  new  parks  at  the  expendi- 
ture of  millions,  as  to  which  I  have  no  objections  to  the  municipality 
going  to  the  Legislature  for  authority.  "  Sewers  and  water- 
works "  are  governed  by  existing  laws.  There  is  no  better  law  that 
could  be  imagined  than  the  present  building  law  in  the  city  of  New 
York,  and  that  is  in  the  Consolidation  Act,  as  amended. 

Mr.  J.  Johnson  —  Will  the  gentleman  allow  me  a  suggestion? 

Mr.  Bowers  —  I  think  I  should  decline,  because  it  is  better  that 
the  chairman  of  the  Committee  on  Cities  should  allow  some  sug- 
gestions to  be  made  on  this  subject  without  constantly  interfering 
with  them. 

Mr.  J.  Johnson  —  You  have  misunderstood  the  article,  that  is  all. 

The  Chairman  —  Mr.  Bowers  has  the  floor. 


August  14.]  CONSTITUTIONAL  CONVENTION.  369 

Mr.  Bowers  —  The  next  is  the  city  apparatus  and  force  for  pre- 
venting and  extinguishing  fires.  We  need  no  law  on  that  subject 
beyond  what  we  have  at  present.  Seventh,  "  vacating,  reducing  or 
postponing  any  tax  or  assessment."  We  need  no  law  on  that  sub- 
ject beyond  those  now  in  existence.  They  are  full  and  complete 
and  protect  the  cities.  Eighth,  "  membership  and  constituent 
parts  of  the  common  council."  We  have  not  come  here  with  any 
demand  for  change  in  that  regard.  And,  lastly,  nine,  "  the  powers 
and  duties  of  the  common  council,"  which  are  already  specifically 
enumerated  in  the  act  to  which  I  referred. 

Now,  Mr.  Chairman  and  gentlemen,  it  is  not  anything  new  that 
the  cities  are  to  get  by  this  proposed  general  law,  and  the  com- 
mittee have  not  risen  to  meet  the  occasion  where  we  do  need  relief. 
As  to  that  I  propose  now  to  tell  you  as  frankly  as  I  have  heretofore, 
as  if  we  were  engaged,  as  we  ought  to  be,  in  a  committee,  striving 
to  work  out  the  most  beneficial  results  to  the  cities.  The  harm 
iS  this:  Year  after  year  the  Legislature  of  the  State  passes  new 
acts  changing  old  forms  of  law  and  putting  municipalities  to  the 
expenditure  of  hundreds  of  thousands,  and  frequently  millions  of 
dollars,  against  the  protests  of  their  own  municipal  authorities.  Is 
that  right?  Last  winter  there  was  passed  by  the  Legislature  an  act 
increasing  the  payment  of  the  employes  of  the  metropolitan  police 
force,  on  an  average  of  at  least  $150  apiece,  against  the  direct  pro- 
test of  the  mayor  of  the  city.  I  submit  to  this  Convention  that, 
while  you  may  ultimately  conclude  not  to  give  home  rule  in  its 
complete  form  to  cities,  if  you  let  the  Legislature  hold  a  restrain- 
ing hand  as  to  the  expenditures,  it  will  be  little  enough  to 
say  that  the  Legislature  shall  not  make  expenditures  against  the 
protest  of  the  city.  Two  or  three  years  ago  the  people  of  the  city 
of  New  York  talked  of  holding  a  Columbian  exposition.  They 
raised  $5,000,000  by  voluntary  contribution.  The  then  mayor  of 
the  city  appointed  a  committee  of  a  hundred  citizens  to  manage 
such  exposition,  and  they  came,  after  long  deliberations,  to  the  con- 
clusion that  the  city  must  make  a  loan  of  ten  millions  of  dollars  in 
order  to  make  the  exposition  scheme  a  success.  There  was  no 
power  in  the  city  itself  to  issue  the  bonds  for  that  loan,  and  they 
were  compelled  to  come  to  Albany  to  ask  specific  power  in  that 
regard  from  the  Legislature,  and  when  they  came  here  the  Legisla- 
ture told  them:  You  cannot  have  that  privilege  unless  you  let  us 
add  some  fifteen  or  twenty  new  men  to  your  committee  to  take  part 
in  the  expenditure  of  the  funds.  That  gave  rise  to  the  protest,  in 
the  strong  language  which  the  gentleman  who  is  the  chairman  of 
24 


370  REVISED   RECORD.  [Tuesday, 

the  Committee  on  Judiciary  of  this  Constitutional  Convention  (Mr. 
Root)  is  so  well  capable  of  using  when  he  pleases,  that  we  in  Xc\v 
York  claimed  the  right  to  spend  our  own  money  in  our  own  way; 
and  New  York  finally  triumphed  and  forced  the  passage  of  such  a 
bill  by  public  sentiment,  but  it  was  not  passed  till  she  lost  the 
opportunity  to  get  the  exposition.  Now,  do  not  misunderstand  me 
to-day.  I  am  not  seeking  to  raise  any  old  political  story;  I  am  Sim- 
ply telling  you  facts  where  the  Legislature  interferes  to  the  injury 
of  cities,  and  where  it  ought  not  to  interfere.  It  may  have  been 
right  enough  to  compel  New  York  to  go  to  the  Legislature  to  ask 
leave  to  issue  ten  millions  of  bonds,  but  if  it  was  right  that  they 
should  be  issued,  and  right  that  the  money  should  be  spent,  then 
it  was  right  that  she  should  spend  it  in  her  own  way.  So,  likewise, 
as  to  the  last  construction  of  an  aqueduct,  you  will  find  precisely 
the  same  state  of  affairs,  that  she  was  obliged  to  take  commissioners 
named  by  the  Legislature.  I  have  but  commenced  to  tell  you  the 
tale  of  wrong  done  the  cities  at  times  by  the  Legislature.  New  York 
is  not  safe  in  her  streets,  and  the  only  reason  that  street  railways, 
yea,  more  than  that,  that  railways  of  the  ordinary  kind,  are  not 
running  as  they  please  in  her  streets  to-day,  is  because  of  an  old 
constitutional  amendment  which  says  that  the  consent  of  the  com- 
mon council  must  be  had  before  you  can  put  a  railway  in  the 
streets.  But  there  is  no  restriction  on  the  right  to  use  her  sub-soil, 
and  it  was  only  two  years  ago  the  Legislature  passed  an  act, 
against  the  earnest  protests  of  the  mayor  of  the  city  of  New  York, 
by  which  a  gas  company  over  in  Long  Island  City  was  authorized 
to  lay  its  mains  under  the  river  and  to  run  them  into  every  street 
in  New  York,  to  take  up  the  pavement  of  every  street  in 
New  York;  and  the  act  expressly  read  that  there  should  be  no 
further  warrant  needed  for  the  exercise  of  the  power  to  tear  up  the 
streets  than  that  act  itself;  thus  doing  away  entirely  with  the  ordi- 
nary power  devolved  upon  the  common  council  and  the  commis- 
sioner of  public  works,  to  say  when  our  pavements  should  be  torn 
up  and  when  our  streets  should  be  altered.  Are  these  things  right? 
Is  it  not  the  duty  of  this  Convention  to  rise  to  the  occasion,  and,  by 
some  short  amendments,  at  least  say  that  the  Legislature  shall  not 
pass  an  act  appropriating  the  funds  of  a  municipality  except  with 
the  assent  of  its  mayor,  and  that  it  shall  not  grant  franchises  in  the 
streets  or  in  the  property  of  such  city  without  a  like  assent?  Do 
the  citizens  of  the  great  cities  ask  too  much  when  they  bring  to  your 
attention  this  class  of  legislation,  which  is  what  gives  rise  to  the 
great  cry  for  home  nile?  It  is  all  wrong.  There  should  be  no 
power  to  do  such  things,  and  it  is  to  this  body  that  the  people  have 


August  14.]  CONSTITUTIONAL  CONVENTION.  371 

the  right  to  look  for  redress.  But  the  Cities  Committee  have  not 
dealt  with  that  question  in  their  report.  They  may  have  overlooked 
it.  They  may  have  forgotten  these  wrongs.  They  may  not  have 
thought  them  of  sufficient  consequence  to  cure.  And  yet  I  do  that 
committee  but  simple  justice  when  I  say  that  the  principle  of  sec- 
tion 4,  which  provides  that  in  a  certain  class  of  cases  there  must  be 
given  the  assent  of  the  mayor,  is  a  right  principle,  and  shows  that 
the  committee  intended,  so  far  as  they  had  considered  the  subject, 
to  give  some  protection.  But  the  difficulty  is  it  is  too  limited  and 
too  cumbersome  in  form,  and  all  you  need  is  the  statement  that  a 
city's  money  should  only  be  spent  on  the  application  of  the  mayor. 

Permit  me,  then,  gentlemen,  to  simply  restate  the  proposition  on 
which  we  must  at  last  plant  ourselves.  You  must  protect  the  cities 
against  expenditures  ordered  by  the  Legislature,  even  though  you 
insist  on  retaining  in  the  Legislature  the  right  to  restrict  the  city, 
as  has-  been  claimed  by  gentlemen  who  have  already  been  heard 
upon  the  floor  of  this  House.  I  have  thus  referred  to  the  only  two 
clauses  in  the  bill  of  the  Cities  Committee  which  in  any  way  pertain 
to  home  rule,  and  I  have  called  your  attention  to  the  facts  which  we 
ought  at  least  to  remedy  in  this  Convention,  and  I  shall  proceed 
now  as  rapidly  as  may  be  to  some  remarks  upon  the  other  portions 
of  this  proposed  constitutional  amendment,  which,  in  my  judgment, 
compel  the  members  of  this  Convention  to  defeat  it  as  a  whole. 

In  section  6  it  is  provided  that  the  Legislature  shall  appoint  com- 
missioners, who  are  to  manage  elections  in  the  cities  of  the  State. 
It  is  a  most  extraordinary  proposition,  and  more  especially  so  at 
this  particular  time.  The  justification  for  it  seems  to  have  been  the 
hapless  Gravesend  frauds  of  these  later  days,  which  have  had  so 
much  influence  upon  the  chairman  of  the  Committee  on  Cities.  But 
has  he  forgotten  that  Democratic  prosecuting  officers  prosecuted 
these  criminals  who  violated  the  election  laws;  that  Democratic 
judges  tried  them  and  Democratic  juries  convicted  them,  and  that 
they  are  suffering  punishment  to-day?  Does  he  forget  that  in  the 
city  of  New  York  Democratic  prosecuting  officers  and  Democratic 
judges  and  Democratic  juries  did  the  same  thing,  for  the  first  time 
in  many  years  that  we  have  been  told  that  any  frauds  in  the  elec- 
tions occurred?  Does  he  know  that  there  is  full  power  in  those 
counties  and  in  all  the  great  cities  to  protect  citizens  in  their  right 
to  suffrage,  and  that  it  does  protect  them?  And  have  we  not  on 
record  in  this  Convention  its  almost  unanimous  vote  unseating 
delegates  here  who  took  no  part  in  those  frauds,  and  who  went  out 
from  our  midst  with  our  certificate  of  the  purity  of  their  characters 
and  lives?  And  this  is  to  be  done,  as  stated  in  the  report  of  the 


372  REVISED  RECORD.  [Tuesday, 

Committee  on  Cities,  at  the  demand  of  thirty-nine  per  cent  of  the 
population,  against  sixty-one  per  cent.  For  the  report  says,  if  I 
read  it  aright,  that  sixty-one  per  cent  of  the  population  of  the  State 
is  now  gathered  in  the  cities.  To  my  mind,  this  is  the  reduction  of 
the  cities  on  a  most  important  question  to  the  condition  of  prov- 
inces, with  satraps  to  be  appointed  by  the  Legislature  for  their 
rulers.  And  why  is  it  to  be  done?  Because  it  is  said  that  the  peo- 
ple of  the  whole  State  have  an  interest  in  the  elections.  So  they 
have.  And  have  not  the  people  of  the  cities  an  interest  in  the  elec- 
tions in  the  rural  districts?  And  while  the  Committee  on  Cities 
tell  us  many  tales  of  frauds  and  wrongs  in  the  cities,  let  me  call 
to  their  attention  some  tales  that  are  floating  about  in  reference  to 
the  rural  districts.  I  do  not  know  how  true  they  are,  but  I  have 
frequently  heard  that  at  important  presidential  elections  the  Prov- 
ince of  Ontario  is  largely  depopulated  by  voters  who  come  over  and 
swoop  down  upon  our  northern  borders,  and,  against  the  protests 
of  our  own  good  citizens,  insist  upon  voting  there;  and  that  on  our 
southern  boundary,  from  the  States  of  New  Jersey  and  Pennsylva- 
nia, the  negroes  come  up,  thick  as  black-birds,  at  the  same  time, 
and  overawe  the  rural  voters,  and  that  in  almost  all  the  rural  dis- 
tricts there  is  more  or  less  corruption  upon  election  day,  which  the 
denizens  of  the  rural  districts  are  unable  to  protect  themselves 
against.  We  are  told  frequently  in  the  public  press  of  all  these 
matters;  they  are  common  rumor,  how  wicked  men  go  into  the 
rural  districts  because  they  have  no  police  officers  and  no  election 
machinery  and  no  power  to  protect  themselves,  and  these  great 
wrongs  are  done  in  which  the  whole  people  of  the  State  are  inter- 
ested. Might  it  not  be  better  under  all  circumstances,  if  we  are 
to  have  commissioners  appointed  by  the  Legislature  to  supervise 
elections,  to  go  and  give  a  helping  hand  to  our  rural  friends,  to 
enable  them  in  the  future  to  have  pure  elections?  It  is  said  that 
this  may  be  extended  to  the  whole  State.  Why?  Have  not  we 
constantly  found  that  the  vote  of  this  State  was  fairly  cast  and 
fairly  counted,  and  have  you  not  elected  a  President  of  the  United 
States  by  a  majority  so  small  as  almost  to  make  you  tremble,  as 
you  waited  until  the  canvassers  had  announced  the  result?  Can  we 
ask  for  better  election  laws?  Have  we  not  all  that  we  need?  And 
yet,  please  understand,  as  I  am  sure  you  do,  that  in  all  I  have  said, 
I  am  not  attempting  to  make  charges  against  any  political  party. 
I  am  only  telling  you  of  things  I  have  heard.  I  do  not  know  who 
were  connected  with  them.  It  seems  to  me  that  this  Convention 
will  bury  the  proposition  to  send  out  these  rulers  to  govern  the 
elections  in  the  cities.  And  then  there  is  that  other  proposition, 


August  14.]  CONSTITUTIONAL  CONVENTION.  373 

that  the  Governor  of  the  State  shall  remove  the  police  commission- 
ers, and  shall  appoint  to  fill  the  vacancy  until  —  I  believe  it  is  —  the 
expiration  of  the  term  of  the  mayor,  who  otherwise  would  appoint. 
Now,  I  want  to  bring  back  to  the  recollection  of  the  Committee  on 
Cities  a  little  political  history.  In  1884,  as  the  result  of  a  popular 
discussion  on  the  abuse  of  the  appointing  power  in  the  common 
council,  an  act  was  passed  vesting  the  absolute  power  to  make 
appointments,  in  the  city  of  New  York,  in  the  mayor.  I  will  not 
take  up  your  time  now  with  the  detail  of  the  wrongs  that  led  to 
the  passage  of  that  act.  It  is  sufficient  to  say  that  it  was  one  of 
f  the  reforms  demanded  by  the  public,  and,  in  my  judgment,  one  of 
the  few  reforms,  the  result  of  popular  clamor,  that  were  good.  It 
put  upon  the  chief  executive  of  the  city  absolute  responsibility 
which  he  cannot  deny  to  the  people.  It  took  from  him  the  excuse 
of  saying  the  common  council  would  not  confirm,  and  it  took  from 
them  the  power  to  bargain.  It  was  a  good  law,  and  it  has  worked 
well.  You  can  get  no  law  to  work  better.  The  principle  which 
justified  the  passage  of  that  law  was  that  the  Legislature  conceded 
to  public  sentiment  the  proposition  that  the  chief  executive  of  the 
city  should  be  given  absolute  power  in  reference  to  all  the  heads 
of  departments  who  make  up  the  government  of  the  city  of  New 
York,  and  should  stand  responsible  to  the  city  therefor.  Having 
vested  that  power  in  the  mayor,  who  also  has  the  power  of  removal 
on  charges,  with  the  approval  of  the  Governor,  what  mean  you  by 
suggesting  that  the  power  of  removal  and  the  power  of  appointment 
thus  given  should  be  taken  from  the  mayor?  Because  it  is  said 
that  the  sheriffs  of  the  State  are  removable  by  the  Governor?  Who 
else  could  remove  them?  Have  you  any  mayors  in  the  counties, 
or  any  other  chief  executive  who  could  do  it?  Why  do  you  sup- 
pose the  law  was  passed?  Because  there  is  no  other  power  to  which 
you  can  go.  But  when  you  turn  and  say  that  the  Governor  of  the 
State  shall  remove  the  police  and  appoint  their  successors,  you 
strike  as  bitter  a  blow  at  home  rule  as  it  is  possible  for  the  ingenuity 
of  man  to  devise.  You  do  not  dare  to  say  on  the  floor  of  this 
House  that  the  police  forces  in  the  great  cities  are  not  good.  Life 
and  property  are  absolutely  secure;  and  when  there  was  talk  recently 
of  an  outbreak  of  Anarchists,  there  were  no  people  who  slept  as 
quietly  and  as  safely  as  the  people  of  the  city  of  New  York,  in  the 
knowledge  of  the  protection  that  they  had  at  the  hands  of  their 
police.  And  if  you  are  not  satisfied  with  it,  and  criticise  it  in  any 
particular,  the  people  of  New  York  city  can  correct  it  for  them- 
selves, and  they  do  not  need  the  assistance  of  the  people  of  the 
State. 


374  REVISED   RECORD.  [Tuesday, 

I  have  thus  dealt  with  the  good  propositions  of  the  bill,  and  I 
have  dealt  with  the  more  material  ones  which  I  deem  to  be  evil. 
There  remains  the  first  subject  for  discussion,  which  is  that  the 
Legislature  shall  pass  general  laws  for  incorporating  new  cities. 
Well,  and  where  are  you  going  to  get  your  new  cities  from?  All 
the  great  cities  of  the  State  have  already  developed,  and  if  some 
struggling  hamlet  grows  to  a  size  sufficient  to  justify  its  becoming 
a  city,  there  is  no  reason  in  the  world  why  it  should  not  come  to 
Albany  and  get  just  such  a  charter  as  its  people  want.  You  have 
not  even  taken  the  trouble  to  say  that  the  old  cities  can  come  in 
and  take  the  benefit  of  these  proposed  new  general  laws.  In  the 
very  carefully  prepared  and  well  delivered  argument  that  was  pre- 
sented to  this  Convention  last  week  by  the  gentleman  from  Brook- 
lyn, Mr.  Jenks,  you  had  pointed  out  to  you,  in  much  more  specific 
terms  than  I  can  hope  to  point  them  out,  the  advantages  of  home 
rule  to  cities;  and  I  understand  that  the  views  that  he  expressed 
must  and  will  at  some  time  receive  the  careful  consideration  of  the 
Committee  on  Cities.  There  is  one  line  to  pursue,  and  that  is  the 
line  suggested  by  him.  You  can  solve  this  problem  now  by  giving 
to  the  cities  the  right  to  govern  themselves  in  their  own  way,  abso- 
lutely free  from  legislative  restraint,  and  I  think  you  will  satisfy  the 
people  of  the  State,  and  I  am  heartily  in  favor  of  it.  But  the 
President  of  the  Convention  and  others  have  told  us  that  it  is  not 
wise  to  do  that;  that  it  cannot  be  done.  At  least  I  so  understand 
their  language;  and,  therefore,  we  are  now  confronted,  after  these 
suggestions  which  I  have  just  brought  to  your  attention,  with  the 
question  as  to  what  we  are  to  do  with  this  problem  on  which  we 
must  act.  If  it  is  not  the  wisdom  of  this  Convention  to  give  abso- 
lute home  rule,  either  in  accordance  with  the  bill  of  the  Cities  Club, 
which,  with  some  amendments,  has  been  offered  by  Mr.  Hotchkiss, 
or  with  the  suggestions  of  Mr.  Mulqueen,  or  the  suggestions  of  Mr. 
Jenks,  then  it  seems  to  me  that  you  must  at  least  deal  with  these 
matters  which  I  have  brought  to  your  attention  this  morning,  and 
give  relief  in  the  way  of  restraint  upon  legislative  enactments;  and 
for  that  you  have  the  precedent"  already  in  existence  that  railways 
shall  only  be  built  in  the  streets  of  cities  with  the  assent  of  the 
Legislature  of  the  city.  With  all  the  substitutes  that  are  now  in 
existence,  and  with  all  the  amendments  that  have  been  made,  it 
seems  almost  a  work  of  superfluity  to  suggest  any  more;  but  the 
only  way  in  which  I  can  present  the  restrictions  that  I  think  you 
ought  to  consider,  is  to  offer  them  in  writing,  and  they  would  be 
these,  that  the  Legislature  shall  pass  no  law  providing  for  the 
expenditure  of  the  funds  of  a  municipality,  except  with  the  assent 


August  14.]  CONSTITUTIONAL  CONVENTION.  375 

of  its  mayor;  no  additions  to  or  alterations  shall' be  made  in  existing 
laws  affecting  any  city  except  with  the  like  assent;  no  alterations 
shall  be  made  in  the  charter  of  any  city  except  with  the  like  assent; 
no  franchise  shall  be  granted  authorizing  the  use  of  the  streets  or 
property  of  any  municipal  corporation  except  with  the  like  assent. 
All  expenses  authorized  by  a  municipal  corporation  shall  be  made 
by  its  duly  constituted  authorities  or  their  nominees. 

I  may  say  in  conclusion,  as  I  said  at  the  outset,  that  I  think  the 
earnest  desire  of  every  member  of  this  Convention  is  to  solve  this 
subject  properly,  and  the  views  I  have  expressed,  so  plainly 
expressed,  are  intended  to  assist  you  in  that  direction.  I  would 
infinitely  prefer  that  you  should  adopt  such  amendments  in  the 
shape  of  absolute  home  rule,  or  by  some  restrictive  clause  of  this 
nature,  and  have  your  amendments  satisfactory  to,  and  adopted  by, 
the  people  of  the  State,  than  that  by  a  bill  which,  while  pretending 
to  grant,  in  fact,  takes  away  home  rule,  you  should  endanger  all 
the  work  of  this  Convention.  With  the  permission  of  the  Conven- 
tion, I  will  ask  leave  to  offer  these  views  in  the  form  of  an  amend- 
ment, which  may  be  referred  back  later  for  proper  consideration. 

Mr.  Holcomb  —  Mr.  Chairman,  I  am  very  mindful,  in  the  con- 
sideration of  this  proposed  amendment  to-day,  that  we  are  here  in 
the  presence  of  the  sovereignty  of  the  people,  in  a  manner  in  which 
that  sovereignty  is  not  expressed  otherwise  under  our  system  of 
government.  This  proposed  amendment  of  the  Constitution  has 
been  debated  at  large  by  the  distinguished  chairman  of  the  Cities 
Committee  (Mr.  J.  Johnson),  and  by  his  colleague  who  comes  from 
the  west  (Mr.  Becker),  and  there  is  very  little,  it  may  be,  left  to  be 
said  by  others  following,  especially  after  my  distinguished  colleague 
from  the  Seventh  District,  and  after  what  Mr.  Emmet,  from  New 
Rochelle,  has  said.  Nevertheless,  Mr.  Chairman,  I  would  consider 
myself  derelict  to  my  duty,  I  would  consider  myself  as  not  discharg- 
ing here  the  trust  reposed  in  me  by  the  great  constituency  that 
made  me  here  upon  this  floor  one  of  its  representatives,  if  I  did  not 
have  something  to  say  concerning  the  extraordinary  proposition, 
depending  now  before  this  committee.  And  first,  Mr.  Chairman, 
taking  the  subject  in  order,  I  would  speak  concerning  the  proposi- 
tion that  there  should  be  in  this  State,  and  that  there  may  be  in  this 
State  hereafter,  a  constitutionalized  minority  representation.  If 
anything  should  be  said  concerning  this  new  idea,  Mr.  Chairman, 
I  think  the  word  should  be  mandatory  upon  the  Legislature.  In 
that,  I  understand,  I  am  at  one  with  the  President  of  this  Conven- 
tion. There  should  not  be  left  to  the  Legislature,  which  so  often 
is  controlled  by  fierce  partisanship,  the  power  to  act  or  not  to  act, 


376  REVISED  RECORD.  [Tuesday, 

in  respect  of  such  a  subject,  at  its  unrestrained  will.  There  already 
are  too  much  confusion  and  detail  in  the  manner  of  our  elections, 
and  if  the  unnecessary  burdens,  which  now  are  almost  intolerable 
upon  our  people,  are  to  be  added  to  by  leaving  the  Legislature  to 
say  this  year  that  there  shall  be  minority  representation,  and  next 
year  that  there  shall  not  be  minority  representation,  it  is  manifest  to 
my  mind  that  confusion  will  be  worse  confounded.  It  is,  therefore, 
as  I  believe,  the  duty  of  this  Convention  to  speak  mandatorily  to  the 
Legislature  of  the  State,  if  it  speak  at  all,  and  say  what  the  Legisla- 
ture shall  or  shall  not  do;  but,  in  my  judgment,  Mr.  Chairman,  the 
whole  theory  is  entirely  un-American.  Ours  is  a  government  of 
majorities.  Will  it  be  said  here  that  our  majorities  are  tyrannical? 
Well,  let  that  pass,  as  being  a  fact.  The  curb  and  the  brake  upon 
a  tyrannical  majority  is  a  strong  minority,  almost  as  strong  as  the 
majority  itself. 

The  man  who  really  formulated  this  principle  of  minority  repre- 
sentation, or  if  he  did  not  formulate  it,  gave  it  currency  in  his 
writings,  who  had  very  much  to  say  upon  it,  and  who  might  be 
considered,  at  least,  the  foster-father  of  the  proposition,  is  the  Eng- 
lish law  writer,  Mr.  Hare,  with  whose  name  all  the  lawyers  in  this 
Convention  are  familiar.  In  his  work  upon  the  question  of  minor- 
ity representation,  he  quotes  with  approval  these  words  of  Edmund 
Burke :  "  Neither  England  nor  France  can,  without  detriment  to 
themselves,  as  well  in  the  event,  as  in  the  experiment,  be  brought 
into  a  republican  form,  but  everything  republican  which  can  be 
introduced  with  safety  into  either  of  them  must  be  built  upon  a 
monarchy,  built  upon  a  real,  not  a  nominal  monarchy,  as  its  essen- 
tial basis.  In  monarchical  government  all  institutions,  either  aristo- 
cratic or  democratic,  must  originate  from  the  Crown,  and  in  all  the 
proceedings  must  refer  to  the  Crown.  It  is  by  that  main-spring 
alone  that  those  republican  parts  must  be  set  in  motion  and  derive 
their  whole  legal  effect,  or  the  whole  will  fall  into  confusion." 
Upon  this,  Mr.  Hare  reasons  in  favor  of  this  so-called  reform:  To 
save  the  Crown,  to  save  the  Crown  from  the  hardship  of  too  much 
republicanism  in  democratic  localities;  to  bring  to  the  throne  the 
conservatism  which  shall  offset  that  democracy,  which  would  like 
to  see  the  crown  torn  from  the  head  of  every  sovereign.  He  does 
not  reckon  with  our  principle  that  no  man  is  to  be  a  king  in  this 
world,  that  there  is  no  king  but  God,  nor  that  our  Republicanism 
and  our  Democracy  are,  alike  patriotic,  are,  alike  the  servants,  and, 
alike,  the  masters  of  the  State,  are  both  and  each  quite  conservative 
when  the  republic's  interests  are  involved,  that  all  of  us  here  on 
this  floor,  that  every  Democrat,  so-called,  and  every  Republican, 


August  14.]  CONSTITUTIONAL  CONVENTION.  377 

so-called,  will  stand,  whenever  the  Union  or  the  State  shall  demand 
of  him,  upon  the  magnificent  words  of  Lowell : 

"  What  were  our  lives  without  thee? 
What  all  our  lives  to  save  thee? 
We  reck  not  what  we  gave  thee, 
We  will  not  dare  to  doubt  thee, 
But  ask  whatever  else,  and  we  will  dare." 

Our  hope,  in  my  judgment,  Mr.  Chairman,  is  in  the  principle  of 
government  by  the  majority,  and,  as  I  observe,  there  is  no  danger 
from  that  principle.  Our  minorities  are  not  selfish  or  cowardly. 
They  are  independent;  they  know  their  rights  and  they  dare  assert 
them,  whenever  there  be  the  need  of  their  assertion.  A  strong  minority 
is  a  check  upon  the  majority  hardly,  as  with  us,  in  this  country, 
stronger  than  itself,  it  acts  readily  as  a  brake  upon  it;  besides  there 
has  always  been,  until  these  new-fangled  notions  received  their  little 
vogue  in  these  later  days,  a  concensus  of  opinion  abong  our  great- 
est statesmen  that  there  is  need  of  two  great  parties  in  State  and  in 
republic ;  of  two  great  parties  which  divide,  not  upon  the  principles 
underlying  our  system  of  government,  but  upon  the  details  to  carry- 
ing those  principles  into  operation;  upon  details  which  are  nothing 
more  or  less  than  the  republic's  counting-house  business,  of  which 
we  can  debate  and  differ  concerning,  and  determine,  for  the  time 
being,  as  the  majority  shall  declare,  regarding  the  manner  in  which 
the  business  of  our  government  should  be  carried  on. 

The  system  approved  by  the  committee  does  not  commend  itself 
to  my  judgment.  It  is  not  wise,  and,  therefore,  it  is  not  expedient. 
We  know  our  policy  to-day.  We  know  with  reasonable  precision 
what  will  be  done  by  this  body,  or  by  our  Legislature  in  session, 
or  by  our  Congress  in  Washington.  In  our  government  we  are 
certain  at  least  of  patriotic  action ;  but  I  would  like  to  ask  any  gen- 
tleman upon  this  floor  what  could  be  looked  for  if  an  ordinary  pro- 
portion of  Populists  or  Coxeyites  were  in  Congress  at  Washington, 
of  Anarchists  in  the  common  council  of  the  city  of  New  York  or 
of  other  of  this  State's  cities,  or  in  our  Legislature,  and  let  him 
answer  me  what  might  be  the  result  to  the  law  and  its  system, 
our  majorities  not  being  able  to  govern  themselves,  but  within 
the  power,  it  may  be,  of  an  unwise,  venal  or  grasping  minority; 
filled  with  hatred  of  our  laws  and  our  principles,  eager  to  put  into 
effect  some  half-judgment  given  out  by  some  "all-wise"  but  irre- 
sponsible committee  or  club  of  Anarchists  or  worse,  and  holding 
the  balance  of  power  between  the  two  great  patriotic  parties 
through  which  now  the  government  is  administered?  I  confess 


378  REVISED   RECORD.  [Tuesday, 

I  do  not  like  the  suggestion.  I  consider  that  all  the  varied  inter- 
ests of  the  State  and  of  all  the  people  now  are  protected  and  repre- 
sented in  our  public  bodies,  and  are  in  the  main  identical.  There 
is  no  need  of  these  hazardous  experiments.  Our  people  have, 
therefore,  since  the  beginning  governed  themselves,  and  will  do 
so;  ever  ready,  as  they  have  shown  themselves  in  the  past  and 
will  show  themselves  until  time  shall  be  no  more,  to  make  a 
majority  to-day  and  unmake  it  to-morrow,  and  able  to  continue 
in  that  way  and  always  hold  control,  absolute  control,  of  their 
own  affairs. 

Now,  Air.  Chairman,  I  would  call  attention  to  other  provisions 
of  the  proposed  amendment,  particularly  to  that  concerning  the 
appointment  of  the  State  inspectors  of  election,  or,  as  they  are 
called  by  the  Committee  on  Cities,  State  commissioners  of  election. 
I  come  from  the  city  of  New  York,  and  I  have  every  confidence 
in  my  constituency.  I  do  not  agree  with  the  gentleman  from  Erie 
(Mr.  Becker)  in  what  he  said  concerning  the  people  of  that  city  any 
more  than  I  agree  with  him  in  the  definition  of  "  liberalism,"  which 
is  very  different  from  my  own  idea  of  liberality,  and  if  I  may  judge 
him  by  his  own  words,  he  would  be  narrow-mindedness  itself  in 
every  suggestion  of  policy  affecting  the  great  constituency  whose 
home  is  down  by  the  ocean  at  the  lower  end  of  the  State. 

I  find  by  looking  at  the  report  of  the  Superintendent  of  Public 
Instruction,  that  the  people  of  the  city  of  New  York  paid  last 
year  the  precise  sum  of  $1,788,866.72  of  the  State  school  tax,  the 
gross  amount  of  which  was  almost  $3,931,741.50,  and  in  addition 
to  that  sum  raised  by  tax  in  the  city  for  local  schools,  $3,885,908.62, 
and  that  the  school  commissioners  of  that  city  disbursed  for  our 
schools  during  the  year  the  enormous  sum  of  $5,611,093.24. 

Now,  Mr.  Chairman,  a  people  whose  authorized  servants  may, 
fitly  and  wisely,  be  entrusted  with  such  enormous  sums  of  money  as 
these,  and  whose  servants  have  been  proven,  so  thoroughly,  wise 
and  fit  for  the  discharge  of  their  official  duties,  must  be  deemed, 
ipso  facto,  certainly  to  have  power  to  govern  themselves,  in 
every  other  regard.  This  to  me  is  a  self-evident  proposition, 
as  being  the  utmost  expression  of  the  people's  capacity,  dis- 
cretion in  the  choice  of  their  servants,  of  the  competency  and 
virtue  of  that  people's  local  authorities  of  every  grade  and  station, 
and  I  do  not  see  why  it  should  be  insisted  upon  by  the  Com- 
mittee on  Cities  that  we  propose  to  that  people,  or  to  the  people 
anywhere  in  the  State,  this  section  of  the  proposed  amendment  of 
the  Constitution,  as  to  these  new  masters  of  elections  throughout 
the  State. 


August  14.]  CONSTITUTIONAL  CONVENTION.  379 

I  do  not  see  why  the  people  of  the  city  of  New  York  should  not 
stand  upon  the  foundation  that  was  laid  in  1873,  after  the  revolution 
of  1871,  when  the  distinguished  Committee  of  Seventy,  working  as 
our  grand  jurors  work,  upon  their  oaths,  "  without  fear,  favor, 
affection,  reward  or  the  hope  of  reward/'  simply  desiring  to  serve 
the  people  of  the  city  and  to  give  it  good  government  —  and  of 
which  Committee  of  Seventy  this  Convention's  President  was  a  very 
distinguished  member,  helping  greatly  to  build  up  that  system  of 
1873  —  why  we  may  not  stand  there  in  that  strong  and  steady  light, 
instead  of  wandering  about  in  the  dark  after  the  rushlight  of  this 
proposed  amendment  of  the  Committee  on  Cities.  (Applause.)  I 
see  no  necessity  for  any  change  at  all ;  but,  if  change  be  made,  then 
I,  with  my  confidence  in  my  great  constituency,  say  that  in  the 
city  of  New  York  we  should  have  the  same  right  to  elect,  in  every 
election  district  of  that  city,  by  our  own  virtuous,  upright  and  intel- 
ligent voting  population,  our  own  inspectors  of  election,  precisely 
as  they  are  elected  in  the  towns  which  lie  so  sweetly  on  the  shores 
of  Lake  George,  or  on  bloodstained  battle  shores  of  Lake  Cham- 
plain.  (Applause.)  We  have  a  right  to  ask  that  our  people  may 
have  leave,  as  have  their  country-fellows,  to  choose  our  own  local 
inspectors  of  election. 

I  believe  this  whole  proposition  of  this  committee  is  simply 
another  expression  of  what  we  have  heard,  frequently,  on  this  floor 
during  the  sessions  of  this  Convention.  It  is  distrust  of  that  great 
principle  upon  which  our  government  rests  in  the  last  resort,  and 
which  I  stand  here  willing  to  carry  out  to  its  logical  conclusion, 
wherever  that  conclusion  may  lead  me,  the  principle  of  manhood 
suffrage,  of  a  suffrage  universal,  and  depending  not  on  what  a  man 
possesses,  but  upon  the  heart,  the  patriotism  and  the  brain  of  the 
individual  citizen  everywhere,  in  State  and  in  republic.  That  is 
the  reason  why  I  am  in  favor  of  my  own  people  having  the  right 
to  exercise  themselves  this  power  of  home  rule.  T  will  take  the 
principle  of  universal  manhood  suffrage  and  follow  it  whithersoever 
it  leads  me,  and  I  am  against  this  proposition  of  the  Committee  on 
Cities,  which  is  proof,  full  and  clear,  that  it  is  afraid  of  and  distrusts 
the  people. 

I  demand  that  the  men  of  my  district  who  toil  with  their  hands 
day  after  day,  who  handle  the  commerce  that  comes  to  this  western 
world  from  the  eastern  hemisphere,  those  hard-handed  children  of 
toil,  who  are  the  very  glory  of  the  Seventh  Senate  District,  the  long- 
shoreman upon  North  River  front,  the  laborer  of  other  sort,  the 
truckmen,  the  merchants  and  stevedores,  all  whose  households  are 
virtuous,  whose  wives  and  daughters  are  like  the  good  woman  in 


380  REVISED   RECORD.  [Tuesday, 

the  proverbs,  "  Crowns  upon  their  husbands  and  mindful  of  the 
ways  of  their  households,"  that  those  men  themselves  who  are 
honest,  upright,  hardworking,  the  peer  of  any  constituency  in  the 
broad  State,  living  virtuously  and  wisely,  as  they  may  in  the  world, 
should  have  the  same  right  to  govern  themselves  as  is  given  to  any 
man  living  within  the  borders  of  any  county  where  grasses  nod  their 
tender  heads  to  soothing  breezes,  and  the  hum  of  trade  and  the 
stress  of  the  battle  of  the  world's  business  are  unknown. 

I  do  not  know  but  this  committee  may  think  that  "  it  is  the 
people,  and  that  wisdom  will  die  with  it,"  but  I  would  rather  con- 
tinue within  the  wisdom  of  my  forebears,  of  those  men  who  have 
gone  before  us  in  the  making  of  Constitutions  and  laws  for  the 
State,  whose  greatness  has  been  shown  in  their  accomplishment;  I 
would  rather  abide  by  the  judgment  of  the  men  who  were  of  the 
Committee  of  Seventy  in  1871;  who  saw  the  city  of  New  York 
almost  ruined  by  wicked  men  of  both  political  parties,  acting  in 
unholy  combination  for  selfish  ends,  and  who,  because  they  loved 
the  city  and  were  loyal  to  the  State,  gave  us  the  charter  of  1873. 

Under  that  charter  we  have  lived  until  to-day;  under  that  charter 
we  can  live  safely  for  a  long  time  to  come,  and  I  am  willing  to  stand 
in  those  broad  paths  and  with  those  statesmen  follow  my  State's 
destiny,  but  not  to  follow  the  committee  as  it  wanders  about  and 
"  staggers  like  the  drunken  man,"  as  the  proverb  hath  it,  because  it 
has  no  new  light  to  give  us  and  not  the  capacity  to  refresh  the  light 
that  our  fathers  lighted  for  us,  and  which  our  friends  and  confreres 
refreshed  for  us  so  splendidly  twenty  years  ago. 

And  then,  Mr.  Chairman,  one  word  to  the  gentleman  from  Erie. 
It  seemed  easy  for  him  to  speak  of  the  "  good  people  "  who  dwell  in 
my  city.  What  is  his  definition  of  the  word  "good?"  Is  it  new? 
I  understand  that  all  our  citizens  are  equal,  in  morals  and  in  mind, 
before  the  law,  whether  they  dwell  in  New  York  or  in  Erie  county, 
and  it  is  not  for  the  gentleman  to  find  in  respect  of  us  a  verdict  as 
to  whether  people  be  "  good  "  or  "  bad ;  "  the  law  makes  its  own 
definition.  I  was  very  sorry  to  hear  the  gentleman  from  Kings 
(Mr.  Powell),  here  the  other  night,  when  talking  upon  the  suffrage 
question,  say  so  often  the  words,  "  the  common  people."  I  thank 
God,  here  in  this  presence,  that  my  mind  conceives  no  such  thing 
in  this  State  as  any  common  people.  We  all  are  upon  the  footstool 
of  God;  upon  a  footing  of  absolute  equality  before  God  and  man, 
and,  although  all  peoples  shall  come  from  all  quarters  of  the  earth 
to  make  their  "  fireside-clime  "  here  under  the  aegis  of  our  great 
citizenship,  they  will  stand,  in  our  law's  eye,  as  stood  the  contents 
of  that  basket  that  was  let  down  from  heaven  before  the  Apostle 


August  14.]  CONSTITUTIONAL  CONVENTION.  381 

Peter,  and  no  man  in  the  world  has  the  right  to  call  them,  or  any 
part  of  them  —  any  man  here  or  elsewhere  —  to  call  any  man  in  my 
great  city,  in  my  district,  "  common  or  unclean."  What  liberty 
hath  cleansed  call  not  you,  gentlemen,  "  common."  We  are  citi- 
zens of  this  republic.  (Applause.) 

On  this  question  of  election  inspectors  I  think  we  should  get 
right  straight  down  to  hardpan.  If  the  people  of  the  city  of  New 
York  are  good  enough  and  have  virtue  enough,  and  are  wise 
enough  to  know  how  to  collect  half  your  taxes  and  honest  enough 
to  pay  it  into  your  treasury,  and  half,  and  more  than  half,  of  the 
moneys  which  educate  the  children  of  the  State,  and  who  are  to  be 
the  future  sovereigns  of  the  State  and  hold  in  their  sovereign  hands 
your  destiny  and  the  destiny  of  all  the  unborn  generations  who  yet 
shall  inhabit  these  great  places  that  now  know  us,  but  soon  will 
know  us  no  more,  and  in  the  time  to  come  shall  make  her  a  thou- 
sand times  greater  and  more  glorious  than  she  is  to-day,  and  shall 
set  upon  the  shores  of  Hudson's  river  by  the  sea  a  capital  beside 
which  all  the  cities  of  the  old  world,  which  have  been  or  shall  be, 
must  be  dwarfed  into  insignificance  —  then  we  have  wisdom  enough 
and  virtue  enough  and  greatness  of  soul  enough  and  are  honest 
enough  to  choose  our  own  inspectors  of  election.  Those  citizens 
who  reside  in  the  country  localities,  in  allowing  any  such  distinc- 
tion as  this  Cities  Committee  suggests,  really  express,  as  I  have 
said  before,  their  distrust  of  the  great  principle  of  universal  man- 
hood suffrage.  It  seems  plain  enough  to  me  that  it  is  quite  wrong, 
so  wrong  as  to  be  upon  the  verge  of  a  crime  against  the  people,  and 
I  do  not  believe  that  this  Convention  will  follow  the  committee  to 
the  conclusion  upon  this  proposition. 

Now,  as  to  the  referendum,  just  a  word.  I  do  not  understand 
why  we  have  so  many  new-fangled,  strange  notions  set  before  us 
in  this  place.  We  have  had  an  attempt  here  to  drive  citizens  to 
the  polls,  and  an  attempt  to  make  men  honest  by  compelling  them 
to  swear  to  their  own  probity.  I  understand  that  the  former  grew 
out  of  the  attempt  made  on  one  occasion  by  a  certain  lawyer  of  the 
city  of  New  York  to  run  for  the  office  of  surrogate;  he  was  beaten 
by  some  50,000  or  60,000  majority,  and  he  has  had  an  insane 
opinion  ever  since  that  if  the  people  had  been  compelled  to  vote 
for  him  he  might  have  come  somewhere  within  20,000  or  so  of  elec- 
tion (laughter  and  applause)  —  and  the  other  came  out  of  the  lucu- 
brations of  one  of  the  multifarious,  voluntary  legislative  Solomon 
associations  with  which  New  York,  and,  I  suppose,  all  the  rest  of 
the  State  are  filled.  I  have  not  the  slightest  sympathy  or  patience 
with  propositions  like  these.  Yet,  let  us  see  how  this  referendum 


382  REVISED  RECORD.  [Tuesday, 

keeps  its  promise  to  the  ear,  in  our  city,  and  breaks  it  to  the  hope. 
It  says  the  Legislature  may  also  pass  laws  as  to  any  city  affecting 
one  or  more  of  such  subjects,  and  to  take  effect  on  the  consent  of  a 
majority  of  the  electors  —  that  is  one  more  of  the  subjects  previ- 
ously enumerated  —  not  any  other.  Suppose  the  Legislature  saw 
fit  to  take  from  our  own  people  in  New  York  control  of  the  police 
force  as  they  did  in  1857?  We  never  could  find  relief.  We  could 
not  get  relief  anywhere.  There  must  be  a  revolution,  as  has  been 
in  this  State,  and  as  will  be  again,  a  revolution  by  the  ballots  cast 
in  the  ballot-boxes,  changing  immediately  our  whole  governmental 
system.  This  promise  of  home  rule,  I  say,  is  kept  to  the  ear  and 
broken  to  the  hope.  Legislative  control  of  the  police  was  tried  long 
ago,  and  disapproved  by  the  people.  I  remember  very  well  reading, 
years  ago,  the  debates  upon  the  report  of  the  Committee  on  Cities 
upon  the  general  subject  of  home  rule,  and  how,  in  1867,  the  dis- 
tinguished gentleman  from  Kings  county  (Mr.  Schumaker),  who 
sits  before  me,  bore  a  great  position  in  that  debate.  They  were 
then  talking  about  this  system  of  1857,  and  why  did  the  people 
overthrow  that?  Why  did  they  have  that  revolution  which  came  in 
1870?  It  was  because  that  system  of  taxation  without  representa- 
tion tore  down  their  very  courage,  and  at  last,  at  last,  after  sending 
out  their  increased  majorities  from  time  to  time,  year  after  year,  to 
express  their  indignation,  and  not  being  heeded,  they  overthrew 
the  system  of  1857,  and  the  system  of  1870  came  and  took  its  place. 
Now,  some  gentlemen  may  say  here  that  the  system  of  1870  did  not 
last  long.  I  will  say  yes,  but  when  the  Committee  of  Seventy  — 
I  come  again  to  that  great  body  of  patriotic  and  unselfish  citizen- 
ship —  when  the  Committee  of  Seventy  prepared  the  new  charter  of 
1873,  they  left  untouched  the  principle,  in  this  regard  of  the  city's 
control  of  its  own  police,  the  principle  of  1870.  Now,  there  are 
some  very  useful  lessons  to  be  taught  here  in  respect  of  the  method 
and  its  sequences  of  1857.  In  1857,  before  the  act  of  1857,  giving 
to  us  a  State  police,  had  been  passed,  the  police  cost  the  city  of 
New  York  $800,000.  In  1859  tne  police  of  the  city  of  New  York 
cost  $1,200,000.  In  1861  it  cost  them  $1,700,000.  There  was  that 
constant  addition  to  the  burdens  of  the  people,  and,  as  in  1861,  we 
had  not  yet  touched  the  war,  so  I  have  the  right  to  cite  that  year 
to  show  you  how  the  system  had,  in  four  years,  doubled  our  taxa- 
tion on  this  behalf,  because  the  fiscal  year  ended  in  the  spring  of 
1861,  before  that  awful  shot  was  fired  upon  Sumter.  Now,  as  I  say, 
we  gave  against  this  iniquity  our  constantly-increasing  majorities. 
We  fought  it  and  fought  it,  and  at  last,  in  1870,  we  destroyed  it, 
and  the  Committee  of  Seventy  came  and  actually,  in  the  charter 


August  14.]  CONSTITUTIONAL  CONVENTION.  383 

of  1873,  gave  their  seal  of  approval  to  our  work;  and  we  now  say 
that  you  should  leave  us  as  that  charter  left  us.  But,  if  we 
wanted  to  make  any  change,  this  referendum  is  deceitful.  "  It  is  a 
delusion  and  a  snare,"  to  quote  the  words  of  the  distinguished  chair- 
man of  the  Committee  on  Cities.  We  cannot  touch  under  it  such 
a  proposition  as  this.  It  were  absolutely  impossible  that  our  peo- 
ple's voice  ever  could  be  given,  or,  if  given,  heard.  It  will  leave 
the  cities  bound  hand  and  foot,  and  not  the  city  of  Xew  York  only, 
but  every  city  in  this  State,  bound  hand  and  foot  to  the  legislative 
power,  subject  to  there  being  reversed,  as  to  us  in  New  York,  with- 
out cause,  the  verdict  of  1873,  and  putting  a  premium  upon  political 
revolution,  which,  gentlemen,  I  warn  you,  if  it  comes,  and  come  it 
will,  will  drive  from  place  and  power  the  men  who  dare  make  such 
assaults  upon  the  independence  of  our  municipalities,  and  flout  the 
wisdom  and  the  virtue  and  the  property  rights  of  the  men  who  dwell 
therein  throughout  the  State.  And  then  there  is  another  reason 
why  there  is  very  great  unwisdom  in  this  course.  It  is  very  unwise 
for  this  Convention  to  alienate  any  large  body  of  our  citizenship 
from  support  of  the  Constitution  which  we  frame,  from  the  Con- 
stitution that  you  shall  propose  to  them,  to  turn  the  people  from  us 
by  the  enactment  of  such  provisions  as  this.  Let  us  all  come  in 
together.  As  concerns  New  York,  we  do  not  wish  to  be  separated 
from  the  State;  that  is  a  fear  as  baseless  as  the  story  of  a  vision. 
For  one,  I  never  would  consent  that  my  great  city  be  cut  off  in  any 
wise  from  the  imperial  body  of  the  State,  never.  But  we  have  the 
right  and  should  be  given  the  privilege  to  regulate  our  own  domes- 
tic affairs,  the  affairs  that  concern  ourselves  particularly,  in  our  own 
way. 

Then  there  is  this  provision  as  to  the  power  of  removal  of  police 
commissioner  and  superintendent  by  the  Governor,  and  in  opposing 
it,  I  come  again  —  I  simply  hark  back  again  to  1873.  I  will  be 
very  pleased  if  I  may  just  call  your  attention  to  a  little  of  the  legis- 
lation. Every  Republican  precedent  in  this  State  is  against  this 
proposed  method  of  removal.  It  seems  that  the  committee  got 
along  well  enough  until  just  about  the  time  they  reached  this  sec- 
tion 5,  and  then  that  there  was  cast  into  the  committee  room  the 
shadow  of  the  ghost  of  the  distinguished  Lieutenant-Governor  of 
this  State  to  drive  the  gentleman  from  Erie  to  make  haste  to  put  in 
this  section,  with  all  its  peculiarities  and  half-judgments,  as  if  he 
were  in  bodily  fear.  William  F.  Sheehan  must  have  scared  almost 
the  life  out  of  him  on  that  day,  or  this  proposed  reversal  of  all  the 
Republican  precedents  of  a  quarter  of  a  century  never  could,  sanely 
speaking,  have  been  given  to  the  day.  Let  us  look  at  it  for  a 


384  REVISED   RECORD.  [Tuesday, 

moment.  When  the  Legislature  created  the  metropolitan  district  in 
1857,  it  gave  the  Governor  the  power  to  appoint  the  commissioners 
and  to  remove.  That  was  all  well  enough,  because  the  Governor 
then  was  the  appointing  power,  and  they  made  a  State  police.  It 
is  the  superintendent  here,  you  will  note  in  this  proposed  amend- 
ment, who  is  removed  by  the  Governor. 

The  Governor  may  remove  the  commissioners  and  the  superin- 
tendent also.  I  will  call  your  attention,  if  you  will  allow  me,  Mr. 
Chairman,  to  the  law  of  1857.  In  section  6  it  is  provided  that  the 
superintendent  shall  be  appointed  by  the  board  of  police  created 
by  this  act,  and  he  is  to  hold  office  so  long  as  the  board  shall  please. 
The  words  of  the  provision  of  the  act  of  1857  substantially  are,  "  so 
long  as  he  observe  the  laws  and  regulations,"  of  which  observance, 
of  course,  the  board  itself  cannot  be  judge.  Now,  by  chapter  137  of 
the  Laws  of  1870  —  that  is  the  charter  for  the  city  of  New  York  of 
that  year  —  the  mayor  was  to  appoint  the  board  of  police,  which 
should  appoint,  and  at  pleasure  remove,  the  superintendent,  almost 
the  provision  of  1857.  By  chapter  335  of  the  Laws  of  1873  —  the 
charter  approved  by  the  Committee  of  Seventy  —  the  mayor  is  to 
appoint  the  board  of  police,  and  himself  be  removed  by  the  Gov- 
ernor, as  are  sheriffs.  That  is  the  law  to-day.  We  have  a  great 
deal  of  talk  about  what  should  be  done  if  the  mayor  did  so  and 
so,  or  failed  to  do  so  and  so.  The  gentlemen  of  this  committee 
seem  absolutely  to  have  lost  sight  of  the  fact  that  our  existing 
system  is  to  have  mayors  removable  by  the  Governor,  as  sheriffs 
are  removable  by  him.  And  in  the  city  of  New  York  the  mayor 
is  to-day  utterly  in  the  power  of  the  Governor,  not  in  his  arbitrary 
power,  but  within  the  reach  of  his  executive  arm.  The  police  force 
is  to  be  appointed  by  the  board  of  police  —  that  is  the  language  of 
the  charter  of  1873  —  and  may  suspend  the  superintendent  and 
other  officers,  and  any  member  of  the  commission  is  removable  by 
the  mayor;  any  member  of  the  force  is  removable  by  the  commis- 
sioners. The  existing  law  in  the  city  of  New  York  is  that  "  all 
heads  of  departments,  except  the  department  of  street  cleaning, 
which  is  removable  by  a  concurrent  vote  of  the  health  department, 
may  be  removed  by  the  mayor  for  cause  and  after  opportunity  to  be 
heard,  subject,  however,  before  such  removal  shall  take  effect,  to  the 
approval  of  the  Governor  expressed  in  writing/?  which  is  quite  right. 
That  the  Governor  shall  have  the  right  to  pass  upon  the 
determination  of  the  mayor  in  respect  of  a  removal,  is  quite  right, 
because  the  Governor  is  the  chief  peace  magistrate  of  this  State. 
It  is  proper  that  he  have  this  right  of  revision  and  to  concur  or  non- 
concur in  such  decision,  because  the  city  of  New  York,  and  every 


August  14.]  CONSTITUTIONAL  CONVENTION.  385 

other  city,  is  a  part  of  the  territorial  State,  as  well  as  a  part 
of  the  legal  and  legislative  State,  and,  Mr.  Chairman,  I 
would  say  that  provision  of  the  statute  that  I  have  just  read 
to  you  is  article  108  of'  the  Consolidation  Act,  so  called,  passed  in 
1882.  Here  is  a  plain,  fair  statement  of  the  procedure  and  expressed 
will  of  the  State  upon  this  branch  of  the  subject,  in  respect  of  the 
removal  of  the  men  who  are  at  the  head  of  the  police  department,  a 
procedure  that  has  been  so  long  continued  as  to  permit  it  now  justly 
to  be  said  that  it  is  a  part  of  the  people's  custom,  especially  when 
there  has  been  given  to  it  so  often  and  so  frankly  the  approbation 
of  the  great  party  now  dominant  in  this  Convention,  and  almost 
always  during  the  last  generation  of  years  controlling  the  Legisla- 
ture, which  has  kept,  ever  since  1857,  the  Governor  from  inter- 
meddling with  police  management,  or  to  have  any  word  in  connec- 
tion with  the  police  department  in  New  York,  except  a  voice  as  to 
the  commission  itself,  when  one  of  its  members  was  sought  to  be 
replaced.  Is  it  not  wiser  and  better,  then,  I  say,  that  we  stand  in 
these  known  and  well-trodden  paths,  in  these  ways  where  we  hear 
still  the  echoing  footsteps  of  the  steady  movement  forward  of  the 
courageous  men  who  have  gone  before  us,  whose  hands  and  hearts 
and  brain  are  in  these  well-considered  systems  of  procedure ;  that  we 
walk  in  these  old  paths,  not  dilapidated  by  age,  but  still  staunch  and 
firm  and  well  buttressed ;  that  we  follow  them  rather  than  these  new 
and,  I  am  constrained  to  say,  ill-digested  schemes  evolved  by  this 
Committee  on  Cities? 

I  will  not  detain  you,  gentlemen,  longer  than  to  refer  to  one 
further  proposition  that  I  wish  to  lay  before  you.  I  think  this 
proposed  amendment  is  big  with  evil.  It  looks  to  me  as  did  the 
story  of  that  great  siege  of  which  I  read  when  a  boy,  of  the 
Grecian  horse  that  came  into  Troy  filled  with  armed  men.  In  my 
judgment  there  is  the  possibility  in  this  measure,  in  this  proposed 
amendment,  of  the  blotting  out  of  every  city  in  this  State.  The 
Legislature,  under  section  7,  will  have  the  power  never  given  to  it 
before,  a  power  that  no  Constitutional  Convention  we  ever  had, 
that  no  Legislature  that  ever  sat  within  these  chambers,  that  no 
man  who  ever  has  guided  the  policy  of  this  State,  ever  dared  to 
claim,  except  the  Legislature  of  1857,  that  districts  containing  cities 
be  created,  over  which  the  Legislature  should  have  supreme  con- 
trol. I  tell  you,  gentlemen  from  Monroe,  that  your  beautiful  city 
of  Rochester  could  be  made  by  this  Convention  the  district  of 
Monroe,  Watertown  be  put  in  Jefferson  district,  and  Syracuse  be 
absorbed  by  Onondaga,  and  it  would  make  no  difference  to  you 
25 


386  REVISED   RECORD.  [Tuesday, 

whether  either  had  a  mayor,  or  had  not.  The  words  of  the  com- 
mittee are  very  clear;  they  are  very  clear,  indeed:  "And  as  to  any 
district  created  by  law  and  containing  a  city  " — 

Mr.  J.  Johnson  —  Won't  you  read  the  rest  of  the  section? 
Mr.  Holcomb — I  have  no  objection  to  reading  it. 
Mr.  Johnson  —  The  rest  of  the  sentence  quoted? 

Mr.  Holcomb  —  I  have  no  objection  at  all  to  reading  it  all. 
"  Nothing  in  this  article  contained  shall  limit  or  affect  the  power  of 
the  Legislature  to  consolidate  contiguous  cities,"  etc.  Over  on  the 
next  page  (reading),  "  Except  as  expressly  limited,  the  power  ol 
the  Legislature  as  to  cities,  their  officers  and  government,  and  as 
to  any  district  created  by  law,  and  containing  a  city,  or  to  provide 
for  the  removal  of  the  mayor  of  any  city  remains  unimpaired." 

Mr.  Johnson  — "  Remains  unimpaired." 

Mr.  Holcomb  —  Yes;  well  how  does  it  remain  unimpaired?  For 
the  first  time  in  our  history  the  words,  a  "  district  created  by  law 
and  containing  a  city,"  intending  to  carry  power,  are  put  into  the 
words  in  the  Constitution ;  they  never  before  have  in  even  a  prospec- 
tive statute;  for  the  very  first  time,  are  they  now  at  all,  except  as 
the  law  of  1857  created,  then  and  there,  in  the  immediate  words,  the 
metropolitan  police  district,  that  has  subsequently  broken  the  poli- 
tical wheel.  Now,  Mr.  Chairman,  I  am  unwilling  to  consent,  and 
I  will  not  consent;  I  never  will  vote  for  a  Constitution  containing 
that  power,  even  if  it  be  by  inference  only.  I  never  will  sign  a 
Constitution  presented  to  me  that  shall  contain  within  it  a  provision 
of  that  kind,  that  New  York  and  her  sister  cities,  which  are  stars 
upon  our  State  firmament,  may  be  made  indistinct;  and  that  is  pos- 
sibly to  be  so  construed  by  the  Court  of  Appeals,  or  by  any  other 
court;  a  proposition  that  a  city  may  be  wiped  out  at  the  legislative 
will,  that  New  York  city's  ancient  powers,  grants  and  privileges 
taken  away  are  within  any  possibility  or  in  anywise  prejudiced  or 
affected.  I  will  never  consent.  The  words  are  not  right;  they  do 
not  belong  there;  and  if  I  be  not  in  order  now,  I  will  when  the  time 
shall  come,  and  in  due  order  of  parliamentary  proceeding,  ask  that 
those  words  be  stricken  from  that  section. 

One  word  more,  Mr.  Chairman,  and  I  am  done.  The  former  part 
of  this  section  7  is  very  peculiar,  very  peculiar.  As  a  citizen 
of  the  city  of  New  York  I  am  jealous  of  her  honor, 
I  am  jealous  of  her  credit,  as  I  am  proud  and  glorify 
myself  in  her  greatness,  her  intelligence  and  her  marvelous 
beauty.  We  never  have  had  a  charter  passed  that  in  the  very 
beginning  of  it  did  not  have  a  saving  clause,  to  this  effect  in  sub- 


August  14.]  CONSTITUTIONAL  CONVENTION.  387 

stance  —  I  have  not  the  charter  of  1873  here  —  recognizing  the  fact 
that  there  are  ancient  rights  and  powers  and  privileges  belonging 
to  the  city,  as  one  might  say,  from  time  immemorial  —  the  word 
"  ancient "  will  cover  it  all.  They  have  been  expressly  saved  by 
expressed  enactment  and  saved  from  every  possibility  of  being 
affected,  in  virtue  of  such  enactment.  In  this  proposed  amendment, 
however,  the  Cities  Committee,  in  suggesting  charters,  stops  at  the 
word  "  consolidation."  I  know  that  there  is  a  provision  in  the  Con- 
stitution of  1846  to  the  effect  that  the  laws  of  the  State  and  the  laws 
of  the  colony  are  preserved.  Whether  the  Montgomerie  charter 
or  the  Dongan  charter  were  the  laws  of  the  colony  is  something 
that  I  do  not  think  this  Convention  should  determine  here.  A 
question  so  grave  should  not  be  open  to  debate,  should  not  be  left 
by  us  thus  open.  Therefore,  I  will  ask  this  Convention  to  insert 
the  following  saving  clause,  in  regard  of  the  new  charters  of  con- 
solidated cities:  "  Nothing  in  this  article,"  says  the  Cities  Commit- 
tee, "  shall  limit  or  affect  the  power  of  the  Legislature  to  consolidate 
contiguous  cities,  or  annex  contiguous  territory  to  any  city,  or  to 
make  or  provide  for  making  a  charter,"  without  limitation.  There 
is  no  saving  clause  now  therein.  The  charter-making  power  as  to 
such  consolidated  cities  is  left  in  the  Legislature  unqualifiedly.  I 
know  how  thoroughly  New  York  city  has  been  protected  in  this 
regard  in  the  days  and  generations  that  are  gone.  In  the  Consoli- 
dation Act  all  the  revenues,  all  the  moneys  that  go  into  the  general 
fund,  are  held,  and  sacredly  held,  forever,  to  be  applied  to  the  pay- 
ment and  redemption  of  the  city's  securities  and  in  the  payment  of 
the  city's  debt.  From  section  171  of  that  act  to  section  174,  which 
is  this,  if  you  will  allow  me  to  read,  Mr.  Chairman,  and  here  is  the 
solemn  compact  made  by  the  Consolidation  Act  between  the  holders 
of  the  city's  securities  and  the  city,  as  follow  the  words:  "  Between 
the  city  and  its  creditors,  the  holders  of  its  bonds  and  stocks,  as 
aforesaid,  there  shall  be,  and  there  is  hereby  declared  to  be,  a  con- 
tract that  the  funds  and  revenues  to  be  collected  from  assessments, 
as  aforesaid,  by  this  chapter  pledged  to  the  sinking  fund  for  the 
redemption  of  the  debt,  shall  be  accumulated  and  applied  only  to 
the  purpose  of  such  sinking  fund  until  all  the  said  debt  is  fully 
redeemed  and  paid  as  herein  provided."  Herein  the  Consolidation 
Act  is  uttering  the  State's  and  city's  view  in  respect  of  this  solemn 
contract.  For  the  first  time,  I  say,  does  the  possibility  of  violation 
of  this  contract  go  into  the  Constitution  of  the  State.  Once  the 
attempt  was  made  under  the  act  of  1857,  to  take  away  from  our  city 
government  certain  license  fees  to  which  that  government  was 
entitled  in  virtue  of  those  ancient  charters,  and  to  turn  them  over 


388  REVISED   RECORD.  [Tuesday, 

to  the  police  board  to  be  applied  to  purposes  such  as  that  board 
should  see  fit  to  apply  them  to,  but  John  T.  Hoffman,  then  the 
mayor  of  the  city,  appealed  as  against  the  constitutionality  of  the 
act,  and  a  Republican  Court  of  Appeals  held  that  it  could  not  be 
done  by  statute;  it  could  not  be  done  in  that  way,  because  they  were 
all  saved  by  the  wisdom  of  the  existing  laws.  That  was  the  reason. 
And  now  it  undertakes  —  this  committee  —  I  do  not  think  that  the 
provisions  could  have  been  carefully  read  by  all  the  committee  — 
undertakes  to  enact,  to  bestow  the  power  to  enact,  measures  similar 
to  that  of  1857,  and  give  sanction  and  force  to  them  in  the 
Constitution. 

Could  unwisdom  go  to  any  greater  length.  Could  the  State  be 
let  to  run  hazards  greater  than  this.  I  think  not,  and  I  will  ask, 
when  the  time  comes,  if  I  be  privileged,  that  there  shall  be  inserted 
in  this  section  a  saving  clause,  as  follows,  after  the  word  "  consoli- 
dation :"  "  Saving  inviolate,  however,  in  such  new  charter,  to  the 
body  corporate  of  the  city  of  New  York,  if  that  city  be  included  in 
any  such  consolidation,  all  the  grants,  powers  and  privileges  now 
and  heretofore  held  by  said  body  corporate  in  virtue  of  its  ancient 
charters  and  acts  of  the  colony  and  State  of  New  York  confirming 
the  same."  And  here,  in  the  face  of  this  Committee  on  Cities  that 
seems  to  be  not  afraid  to  trifle  with  the  credit  of  the  city  of  New 
York,  I  would  like  to  say:  At  present  the  three  and  one-half  per 
cent  obligations  of  the  city  are  above  par.  There  is  no  city  in  the 
world  whose  credit  is  better  than  that  of  the  city  of  New  York  at 
this  moment;  there  is  no  municipality  that  can  sell  its  securities  as 
she  can  hers,  and  her  present  monetary  security  should  not  be  dis- 
turbed, even  by  an  intimation  or  an  inference,  if  this  Convention 
have  power  to  save  it.  I  remember  very  well  one  statute  that  was 
enacted  just  before  the  revolutionary  war,  in  truth  in  the  year  of 
Washington's  birth,  as  the  founder  was  providing  for  the  man  and 
statute  for  the  impending  strife,  the  man  to  save  the  country,  the 
statute  to  save  the  credit  of  this,  the  greatest  of  the  colonies,  to  be 
a  bulwark  to  the  armies  that  should  defend  them,  and  in  later  years, 
just  as  the  stress  of  the  revolution  began  its  self-assertion,  the  Legis- 
lature of  the  colony  was  mindful  of  its  duty  to  the  people,  even  as 
are  the  Legislatures  of  the  present  day,  and  provided  for  the  per- 
petual preservation  of  those  basical  chartered  rights  and  powers. 
In  1732  the  colonial  Legislature  passed  an  act  absolutely  confirm- 
ing in  every  way  those  ancient  charters,  vesting  in  the  city  of  New 
York,  in  perpetuity,  the  powers  and  rights  therein  defined.  When 
this  Convention  prepare  for  the  submission  to  the  people  of  this 
fundamental  law,  when  we  make  for  them  these  great  propositions 


August  14.]  CONSTITUTIONAL  CONVENTION.  389 

that  shall  control  all  our  law-making  for  years  and  years  to  come, 
I  insist  that  there  be  no  loophole  which  shall  put  in  jeopardy  one 
jot  or  tittle  of  the  credit  of  New  York  city,  there  be  nothing  left 
open  for  somebody  to  debate  in  regard  of  that  credit  or  whether  our 
obligation  holders  be  secure  or  no.  Mr.  Chairman,  the  question  of 
the  government  of  the  cities  of  this  State  is  a  very  grave  question 
indeed,  yet  easy  of  solution,  we  having  confidence  in  the  people,  and 
I  am  reminded  that  there  is  one  name  that  is  not  attached  to  this 
majority  report,  the  name  of  one  man  of  the  Cities  Committee,  who 
is  part  and  parcel  of  the  history  of  the  city  of  New  York,  of  one 
man  who  stood  firmly  as  a  rock  in  the  sea  and  dared  so  to  stand, 
vvhen  assaults  were  made  upon  the  funds  and  the  credit  and  the 
property  of  the  city  of  New  York,  which  he  had  in  charge,  and  who 
knows  thoroughly  the  city,  its  needs  and  its  deeds.  I  do  not  find 
the  name  of  Andrew  H.  Green  attached  to  this  majority  report, 
and  Andrew  H.  Green's  name  will  go  farther  with  me  than  the 
names  of  all  the  majority  upon  this  committee.  (Applause.)  Gen- 
tlemen of  New  York  city,  my  colleagues  and  brethren  upon  this 
floor,  I  appeal  to  you.  We  must  stand  firm  for  the  rights  of  our 
constituencies,  for  this  prerogative  and  the  prerogative  of  the  city. 
We  must  stand;  we  have  the  right  to  stand;  it  is  our  duty  to  stand 
by  the  people  of  both  city  and  State,  who  are  called  the  "  common 
people,"  but  who  are  the  princes  and  sovereigns  with  their  ballots  and 
whom  virtuous  citizenship  put  in  possession.  Whether  they  live  in 
tenements  along  the  river  front  or  in  the  apartments  that  are  inter- 
mingled with  the  palaces  of  money  in  Wall  street,  or  in  their 
houses  and  palaces  along  the  great  avenues;  whether  they  toil  with 
their  hands  or  with  their  brains,  and  wherever  from  the  parts  of  the 
world  they  come,  they,  with  the  true  delegates  of  the  people,  are 
children  of  the  same  God,  citizens  of  the  State  of  New  York  and 
of  the  United  States;  and  with  my  voice  and  with  my  vote  I  will 
stand  firmly  out  in  every  presence  for  their  welfare  and  in  their 
defense. 

Mr.  J.  Johnson  —  Mr.  Chairman,  I  do  not  intend  to  participate 
in  the  debate  at  the  present  time  farther  than  to  correct  what  I 
deem  obvious  misunderstandings  of  the  article  discussed.  I 
attempted  to  make  such  a  correction 'when  the  gentleman  from 
New  York  (Mr.  Bowers)  was  speaking.  He  said  that  they  had  ade- 
quate and  sufficient  laws  in  New  York  as  to  streets,  as  to  parks,  as 
to  water,  and  he  construed  this  amendment  as  giving  power  to 
revoke  and  take  away  those  powers.  The  power  to  do  so  at  the 
present  time,  without  this  amendment,  is  absolute,  full  and  entire 
in  the  Legislature.  This  amendment,  if  adopted,  subjects  the 


390  REVISED   RECORD.  [Tuesday, 

repeal  of  those  laws  to  the  consent  of  the  city.     They  are  words  to 
save,  and  not  to  take  away;  words  of  prohibition,  and  not  of  grant. 

Mr.  Bowers  —  May  I  ask  the  gentleman  a  question?  Do  I 
understand  you  to  say  that  you  intend  to  prohibit  the  Legislature 
from  changing  the  laws  as  they  now  stand  respecting  cities? 

Mr.  Johnson  —  I  answer  that  there  is 

Mr.  Bowers  —  I  think  that  will  take  a  yes  or  no. 

Mr.  Johnson  —  As  toward  the  enumerated  subjects  it  does  pro- 
hibit, except  with  the  consent  of  the  cities. 

Mr.  Bowers  —  Why  not,  then,  include  all  subjects  involving  the 
expenditure  of  moneys,  and  why  not  put  it  in  language  so  plain 
that  even  a  man  as  stupid  as  myself  will  understand  it? 

Mr.  Johnson  —  Because  police,  elections,  health  and  education 
are  matters  which  cannot  be  limited  by  city  boundaries,  and  within 
all  definitions  are  matters  that  the  State  is  bound  to  administer. 

Another  correction.  The  gentleman  last  speaking,  I  understood 
to  say  that  this  gave  power  to  consolidate  cities,  power  to  annex 
territory,  power  to  create  districts  for  police  or  other  purposes. 
There  is  not  one  particle  of  power  granted  in  either  of  those  direc- 
tions. Not  one  particle.  It  simply  says  that  the  power  to  consoli- 
date cities  remains  unimpaired.  And  the  reason  that  that  was  sug- 
gested is  this,  that  this  fall,  at  the  very  election  when  the  articles 
we  present  are  to  be  voted  upon,  the  people  of  the  city  that  he  rep- 
resents are  to  vote  upon  the  question  of  the  greater  New  York 

Mr.  Holcomb  —  May  I  ask  the  gentleman  a  question?  If  there 
be  no  virtue  in  the  last  words  of  your  proposed  amendment,  ending 
with  the  word  "  unimpaired,"  why  do  you  want  it  here?  Why  do 
you  not  take  them  out? 

Mr.  Johnson  —  I  did  not  say  there  was  no  virtue  in  them ;  there 
is  virtue  in  them 

Mr.  Holcomb  —  Well,  I  would  be  pleased  to  hear  what  the 
virtue  is. 

Mr.  Johnson  —  The  proposition  is  this,  that  having  recognized 
cities  in  the  first  section  to  the  extent  of  saying  there  shall  be  a 
mayor  and  a  common  council,  which  is  not  in  the  present  Consti- 
tution ;  having  enacted  in  sections  3  and  4  —  if  we  should  do  so, — 
that  acts  as  to  those  matters  could  not  be  passed  without  the  con- 
sent of  the  cities,  unless  a  saving  clause  was  put  in,  it  would  be 
obvious,  I  think,  certainly  probable,  that  all  power  to  carry  out  the 
statute  on  the  part  of  the  Legislature  would  be  abrogated.  And  all 
power  to  annex  outlying  sections  would  also  be  abrogated. 


August  14.]  CONSTITUTIONAL  CONVENTION.  391 

Before  the  Committee  on  Cities,  it  was  represented  that  just  outside 
of  any  city  there  might  be  a  place  not  subject  to  city  jurisdiction 
which  could  be  the  rallying  point  for  the  evil  influences  of  the  city; 
and  it  was  stated,  and  this  was  to  cover  it,  that  the  power  to  annex 
contiguous  territory  should  not  be  limited.  And,  last  night,  in  the 
New  York  Sun,  the  strongest  opponent,  perhaps,  of  this  amend- 
ment, a  paper  that  represents  perhaps  more  fully  than  any  other  the 
sentiments  of  many  of  the  gentlemen  of  the  minority,  the  precise 
case  that  was  stated  to  the  committee  was  stated  —  and  this  was 
editorially  —  that  just  outside  the  city  of  New  York,  in  Westches- 
ter,  was  a  town  or  a  village,  that  was  the  rallying  point  of  the  evil 
influences  that  preyed  on  the  city,  and  the  New  York  Sun  editori- 
ally said  that  at  once,  whether  they  willed  or  no  —  because  of  course 
they  would  object  —  that  section  should  be  brought  within  the  city. 
And  so  the  power  to  annex,  the  power  to  consolidate,  is  not  granted 
in  any  degree  here,  is  not  enlarged.  It  simply  provides  that  it 
should  not  be  construed  that  those  necessary  powers  have  been 
abolished  by  implication.  If  the  gentleman  will  get  up  and  say  he 
wants  those  powers  abolished,  well  and  good.  Then  we  are  on  a 
plane  of  argument.  But  if  he  says  he  does  not  desire  them  abol- 
ished, then  this  section  of  which  complaint  is  made  is  absolutely 
necessary  to  any  provision  for  greater  municipal  independence. 

Mr.  Schumaker  —  Will  the  gentleman  allow  me  to  ask  a  question? 

Mr.  Johnson  —  Certainly. 

Mr.  Schumaker  —  Are  not  the  officers  of  the  law  there,  in  that 
little  Casino,  or  whatever  it  is  called,  outside  the  city  of  New  York? 
Is  not  the  government  of  the  State  there?  Is  it  outside  of  civiliza- 
tion? Is  it  outside  the  State  of  New  York  or  New  Jersey,  or 
some  other  place?  The  officers  of  the  law  are  there  just  as  much  as 
in  the  city  of  New  York,  and  have  just  the  power  of  the  city  of  New 
York  or  any  of  its  policemen,  and  I  do  not  think  they  would  be  any 
better  governed  if  they  were  within  the  city. 

Mr.  Johnson  —  The  simple  situation  is  this,  that  if  it  be  true,  what 
is  stated  in  the  New  York  Sun,  that  the  officers  of  the  law  are 
powerless,  there  is  no  other  remedy,  and  the  remedy  is  not  taken 
away. 

Mr.  Schumaker  —  It  is  something,  Mr.  President,  with  which  the 
gentleman  and  I  are  very  familiar.  You  and  I  know  how  Judge 
Gilbert  squelched  gambling  in  Long  Island  City,  do  we  not?  It  is 
familiar  to  both  of  us  how  he  went  there  as  chief  magistrate  and 
enforced  the  law  in  Long  Island  City.  You  and  I  both  remember 
that. 


REVISED   RECORD.  [Tuesday, 

Mr.  Johnson  —  It  is  a  very  interesting  reminiscence,  but  I  do 
not  see  what  it  has  to  do  with  this  argument. 

Mr.  M.  E.  Lewis  —  Mr.  Chairman,  I  move  that  the  committee 
do  now  rise,  report  progress  and  ask  leave  to  sit  again. 

The  Chairman  put  the  question  on  the  motion  of  Mr.  Lewis, 
and  it  was  determined  in  the  negative  by  a  standing  vote  —  44  to  42. 

Air.  Xicoll —  Mr.  Chairman,  I  have  been  very  much  surprised 
at  the  course  which  this  discussion  has  taken,  and  especially  at  the 
criticisms  which  have  been  made  upon  the  report  of  the  committee 
by  some  of  the  minority  of  this  Convention.  I  can  quite  under- 
stand why  the  minority  of  the  committee  could  never  have 
appended  their  names  to  this  report.  It  undoubtedly  contains  pro- 
visions in  relation  to  the  power  of  the  Governor  over  the  police 
commissioners  in.  cities,  and  the  creation  of  an  extraordinary 
method  for  the  control  of  elections  by  the  State,  which  no  man 
who  has  any  regard  for  the  welfare  of  municipalities  could  possibly 
subscribe  to.  And,  therefore,  the  withholding  by  the  minority  of 
this  committee  of  their  signatures  from  this  report  was,  in  my 
judgment,  consistent,  reasonable  and  proper.  But  while  it  is  true 
that  this  report  contains  propositions  which  no  one  of  the  minority 
ought  ever  to  assent  to,  it  cannot  be  denied  that  it  also  contains 
propositions  which  every  representative  of  the  cities  of  the  State 
who  is  committed  by  his  own  experience  and  the  experience  of 
his  municipality,  to  the  principle  of  local  self-government,  must 
subscribe  to,  as  essential  for  carrying  out  a  real  reform.  I  do  not 
hesitate  to  say  that  this  report  contains  two  propositions  which  all 
home  rulers  agree  are  absolutely  essential  to  any  constitutional 
scheme  for  the  better  government  of  cities.  The  two  propositions 
are  these: 

v  First,  a  separation  of  local  elections  from  State  and  national 
elections. 

And,  second,  still  more  important,  still  more  vital  for  the  pur- 
pose in  view,  an  inhibition  to  the  Legislature  to  interfere  by  special 
act  with  the  charters  of  cities. 

These  two  principles,  however  imperfectly  expressed  in  this  pro- 
posed constitutional  amendment,  are  still  to  be  found  within  its 
limits  and  are  absolutely  essential  and  necessary  for  that  system 
of  local  self-government  of  cities  of  this  State  which  the  people 
in  those  cities  expect  this  Convention  to  adopt. 

As  to  the  first  proposition  there  seems  to  be  a  general  concur- 
rence of  opinion  in  its  favor  by  all  the  gentlemen  who  have 
addressed  the  Convention.  Everyone  seems  to  agree  that  the 


August  14.]  CONSTITUTIONAL  CONVENTION.  393 

separation  of  local  elections  from  State  and  national  elections  is 
one  step  forward  in  the  cause  of  better  municipal  government. 
It  is  expected  that  that  change  will  arouse  in  the  cities  of  this 
State  a  keener  civic  spirit  and  interest  in  city  affairs.  It  is 
expected  that  instead  of  being  distracted  as  we  are  now  by  con- 
siderations of  State  and  national  politics;  instead  of  looking  at 
every  city  office  and  proposition  from  a  partisan  standpoint  in  a 
national  sense,  we  will  come  to  look  at  them  from  a  partisan  stand- 
point in  a  city  sense;  that  parties  will  begin  to  be  divided  in  cities 
not  upon  State  and  national  issues  as  to-day,  but  will  be  governed 
by  consideration  of  the  city's  welfare  alone.  Such  I  say  is  the  result 
which  the  proposers  of  this  part  of  the  cities  article  hope  to 
achieve.  I  believe  that  it  is  one  step  forward;  that  it  is  without 
question  an  advance  on  right  lines.  It  will  help  to  produce  the 
result  desired.  But  as  to  its  constituting  the  panacea  for  every 
municipal  ill,  as  to  its  really  arousing  that  deep  civic  interest  which 
is  expected,  as  to  its  curing  the  habit  of  indifference  to  strictly 
municipal  affairs  which  now  obtains,  I  can  hardly  believe  it  will 
have  all  the  effect  expected  from  it. 

In  fact,  there  are  those  who  contend  that  it  may  play  right  into 
the  hands  of  political  machines.  Now,  I  find  that  in  some  of  the 
cities  of  other  States,  where  the  separation  of  State  and  national 
from  city  elections  has  been  tried,  a  return  has  been  made  to  the 
old  system,  because  only  by  a  union  of  all  elections  could  the  full 
vote  of  the  city  be  brought  out.  In  some  of  the  cities  of  the  State 
we  have  spring  elections  to-day  with  no  better  government  from 
that  cause.  At  one  time  we  had  separate  elections  in  the  city  of 
New  York.  I  do  not  believe,  therefore,  that  any  one  can  say,  with 
any  certainty  or  confidence,  that  the  separation  of  city,  State  and 
national  elections  will  prove  a  remedy  for  ail  existing  evils.  I 
propose,  however,  to  vote  for  it  because  it  is  right  in  principle  and 
a  long  step  forward.  I  believe  it  may  have  some  effect  in  arousing 
an  interest,  now  dormant  in  city  affairs,  a  result  which  all  men 
agree  to  be  essential  before  a  better  government  of  cities  can  be 
achieved. 

But  unless  we  go  further,  unless  we  adopt  the  other  important 
principle  embodied  in  this  report,  this  Convention  will  do  little  or 
nothing  for  an  enduring  reform  of  the  government  of  cities.  Unless 
we  put  an  end  forever  to  the  system,  which  has  existed  in  this 
State  for  many  years,  of  the  government  of  the  cities  of  the  State 
by  the  Legislature  of  the  State,  without  any  restriction  on  the  power 
of  interference;  unless  we  give  to  the  people  of  the  cities  of  this 
State  that  amount  of  local  self-government  which  we  give  to  the 


394  REVISED  RECORD.  [Tuesday, 

counties,  towns  and  villages;  unless  we  give  to  them  something 
in  the  way  of  municipal  government  which  is  permanent,  stable, 
definite  and  which  cannot  be  tampered  with  or  taken  away  by  Legis- 
latures, we  may  as  well  leave  the  Constitution  where  it  is  to-day. 

There  is  little  new  about  all  this  discussion.  Probably  nothing 
that  I  shall  say  on  the  subject  will  have  the  merit  of  originality. 
Students  of  municipal  affairs  and  practical  men  versed  in  municipal 
government  have  practically  made  up  their  minds  upon  it.  In  the 
Constitution  of  1846,  the  subject  received  little  attention,  because  at 
that  time  the  government  of  communities  agricultural  seemed  of 
greater  importance  than  the  government  of  cities.  Yet  even  that 
Constitution,  as  we  all  know,  undertook  to  give  to  cities  some 
measure  of  local  self-government,  to  the  extent  of  providing  that 
they  should  have  the  right  of  electing  or  appointing  their  own 
officers.  Some  years  after  the  adoption  of  that  Constitution  that 
provision  came  to  be  interpreted  by  the  court  of  last  resort,  and  it 
was  adjudged  that  the  Constitution  of  1846  really  provided  no 
measure  of  local  self-government  whatever  and  that  it  still  remained 
in  the  hands  of  the  Legislature  to  govern  the  cities  of  this  State  by 
commissions  appointed  by  it.  As  a  result  we  had  metropolitan 
police  districts  governed  by  legislative  commissions;  we  had  water 
commissions,  park  commissions,  health  commissions  and  fire  com- 
missions. For  many  years  all  of  the  most  important  functions  of 
government  in  New  York  were  in  the  hands  of  commissions.  Now, 
sir,  what  was  the  fruit  of  that  system  of  government  by  the  Legis- 
lature? What  was  its  result?  What  did  it  finally  lead  to?  Why, 
we  all  know  that  it  led  to  the  Tweed  ring  in  the  city  of  New  York, 
which  stole  millions  and  millions  of  dollars  from  the  public  treas- 
ury in  the  course  of  a  few  weeks  after  a  charter  from  the  Legislature 
of  this  State  had  been  easily  procured.  Many  of  you  will  recollect 
the  circumstances  under  which  that  charter  was  obtained.  The 
habit  of  governing  New  York  by  the  Legislature  was  then  firmly 
established.  It  required  no  great  difficulty  for'  the  corrupt  and 
adroit  politicians  of  the  city  of  New  York  of  that  era  to  form  a 
combination  with  the  majority  of  the  Legislature  and  by  promises 
of  office  and  other  corrupt  considerations  to  pass  a  charter  which 
legislated  out  of  office  the  existing  heads  of  departments  and  con- 
centrated all  power  in  themselves.  The  treasury  of  the  city  of 
New  York  was  immediately  at  their  mercy;  and  in  an  incredibly 
short  time  after  the  charter  had  been  enacted  they  had  plundered 
the  city  of  millions  of  dollars.  Had  the  gentlemen  in  the  Conven- 
tion of  1867,  who  refused  to  break  up  the  possibility  of  this  partner- 
ship between  officers  of  cities  and  the  Legislature,  ever  foreseen 


August  14.]  CONSTITUTIONAL  CONVENTION.  395 

what  happened  in  New  York  only  two  years  after  the  adjournment 
of  their  session,  do  you  believe  they  would  have  withheld  from  the 
people  of  that  city  that  measure  of  local  self-government  which  they 
were  entitled  to?  The  charter  of  1870  was  soon  repealed  and  then 
came  our  charter  of  1873  in  New  York  city  under  which  we  have 
been  living  ever  since.  But  nothing  has  been  changed  so  far  as 
the  Legislature  is  concerned.  All  the  evils  to  which  we  were  then 
exposed  we  are  exposed  to  now.  There  is  nothing  now  in  our 
system  of  government  which  would  prevent  the  re-enactment  of  the 
same  provisions  of  law  which  enabled  that  great  fraud  to  be  com- 
mitted upon  the  city  of  New  York.  We  are  at  the  mercy  of  the 
same  conditions  which  existed  then.  The  habit  of  legislative  inter- 
ference is  as  firmly  fixed  as  ever.  Consider  what  happens  at  every 
session  of  the  Legislature.  Some  men  in  New  York  want  an  office 
created.  They  go  up  to  the  Legislature  and  get  it.  Some  want 
salaries  increased.  The  Legislature  does  it.  .Some  faction  comes 
into  control  and,  for  partisan  reasons,  procures  an  act  taking  away 
power  from  one  portion  of  the  city  government  and  transferring  it 
to  another.  Someone  is  desirous  of  selling  land  for  the  purpose 
of  building  a  park.  The  Legislature  helps  the  scheme  along.  At 
every  session  offices  are  created,  powers  are  taken  away,  new  duties 
are  imposed,  authority  transferred  from  one  office  to  another,  from 
one  department  to  another,  according  as  faction  after  faction,  or 
individuals  after  individuals  arrive  at  control  in  the  city  of  New 
York.  What  is  the  result?  A  natural  habit  of  indifference  to  city 
affairs  among  a  large  class  of  citizens.  Why  should  any  man  in  the 
city  of  New  York  take  a  deep  and  lasting  interest  in  a  government 
which  is  so  shifting,  so  uncertain,  transitory;  which  has  no  definite 
and  stable  existence  whatever?  Why  should  the  common  council 
of  the  city  of  New  York  acquit  itself  at  all  times  well,  when  the 
very  members  of  the  common  council  may  be  shorn  of  the  powers 
that  they  have  to-day,  and  wake  up  to-morrow  with  really  no  power 
at  all? 

Mr.  Chairman,  these  propositions  can  hardly  be  said 'to  be  my 
own.  I  am  not  the  originator  of  these  thoughts  or  the  inventor  even 
of  these  forms  of  expression.  If  you  will  read  the  debates  of  the 
Constitutional  Convention  of  1867,  many  abler  men  than  I  am,  or 
ever  hope  to  be,  advanced  these  same  propositions.  Shortly  after 
Governor  Tilden  was  elected  Governor  of  this  State  in  1874,  he 
addressed  to  the  Legislature  of  this  State  his  celebrated  message  on 
municipal  reform,  in  which  these  two  propositions  which  I  have 
asserted  as  necessary  to  be  incorporated  in  any  constitutional 
amendment  designed  for  satisfactory  local  self-government  of  cities 


396  REVISED   RECORD.  [Tuesday, 

were  insisted  upon.  Shortly  after  that  message,  a  commission  was 
appointed  by  the  Legislature  to  examine  the  evils  found  in  the 
government  of  cities  and  to  recommend  remedies  therefor.  That 
commission  consisted  of  a  large  number  of  distinguished  men,  one 
of  whom  was  the  partner  of  the  distinguished  President  of  this  Con- 
vention, a  late  Secretary  of  State  of  the  United  States,  and  also  a 
United  States  Senator  from  this  State.  They  brought  to  the  con- 
sideration of  this  question  large  experience,  ripe  learning  and  a 
conscientious  desire  for  reform.  Their  labors  resulted  in  a  recom- 
mendation that  a  constitutional  amendment  should  be  submitted 
to  the  people  providing  for  separate  local  elections  and  for  absolute 
inhibition  to  the  Legislature  to  interfere  by  special  act  in  the  local 
affairs  of  cities.  That  proposed  amendment,  as  we  all  know,  was 
not  submitted,  because  unfortunately  it  contained  a  provision  that 
certain  officers  of  cities  should  be  elected  only  by  voters  possessing 
a  certain  amount  of  property.  It  required  a  property  qualification. 
It  was,  therefore,  avoided  by  both  parties  as  a  dangerous  innovation. 

Only  a  few  years  ago  a  Senate  committee  undertook  to  study 
this  question,  and  after  a  vast  amount  of  labor,  prepared  a  report 
in  which  they  say  substantially  the  same  things  as  were  declared 
necessary  by  the  commission  of  1876.  Their  language  is:  " It  is  fre- 
quently impossible  for  the  Legislature,  the  municipal  officers,  or 
even  for  the  courts  to  tell  what  the  laws  mean.  That  it  is  usually 
impossible  for  the  Legislature  to  tell  what  the  probable  effect  of 
any  alleged  reform  in  the  laws  is  likely  to  be.  That  it  is  impos- 
sible for  anyone,  either  in  private  life  or  in  public  office,  to  tell 
what  the  exact  business  condition  of  any  city  is,  and  that  municipal 
government  is  a  mystery,  even  to  the  experienced.  That  municipal 
officers  have  no  certainty  as  to  their  tenure  of  office.  That  muni- 
cipal officers  can  escape  responsibility  for  their  acts  or  failures  by 
securing  amendments  to  the  law.  That  municipal  officers  can 
escape  real  responsibility  to  the  public  because  of  the  unintel- 
ligibility  of  the  laws,  and  the  insufficient  publicity  of  the  facts  rela- 
tive to  municipal  government.  That  local  authorities  receive 
permission  to  increase  the  municipal  debt  for  the  performance  of 
public  works,  which  should  be  paid  for  out  of  taxes.  That  the 
conflict  of  authority  is  sometimes  so  great  as  to  result  in  a  complete 
or  partial  paralysis  of  the  service.  That  our  cities  have  no  real  local 
autonomy.  That  local  self-government  is  a  misnomer,  and  that, 
consequently,  so  little  interest  is  felt  in  matters  of  local  business 
that,  in  almost  every  city  in  the  State,  it  has  fallen  into  the  hands  of 
professional  politicians. 

"  Our  cities  are,  so  far  as  we  have  been  able  to  learn,  the  only 


August  14.]  CONSTITUTIONAL  CONVENTION.  397 

important  cities  where  such  important  conditions  still  exist. 
Wherever  they  have  heretofore  existed  they  have  been  cured  by 
the  abstention  on  the  part  of  the  Legislature  from  special  legislation 
and  the  enactment  of  general  laws  springing  out  of  a  general  uni- 
form, logical  and  coherent  plan  for  the  government  of  cities. 

*'  We,  therefore,  urge  upon  your  consideration  the  immediate 
necessity  of  a  constitutional  amendment  which  shall  prevent  special 
legislation  affecting  the  government  of  cities.  In  the  advocacy  of 
this  principle  we  understand  that  the  so-called  Tilden  commission 
was  unanimous,  although  its  members  differed  in  other  respects." 

And  so  we  find  all  men,  of  all  parties,  of  all  generations  who  have 
profoundly  investigated  this  subject  of  local  self-government  in 
cities,  men  who  considered  and  debated  it  a  quarter  of  a  century 
ago,  and  men  who  were  appointed  by  the  Legislature  only  a  few 
years  ago  to  study  this  question  and  make  recommendation  upon  it, 
uniting  and  agreeing  upon  the  same  things  as  necessary  before  a 
permanent  reform  can  be  expected,  viz.:  Separation  of  the  local 
elections  in  cities  from  State  and  national  elections  and  inhibition 
upon  legislative  interference  with  their  charters  by  special  laws. 
The  history  of  the  government  of  the  city  of  New  York  points  to 
the  same  conclusion.  There  is  no  method  of  the  government  which 
we  have  not  experimented  with  in  the  city  of  New  York.  We 
have  had  several  charters  since  1830,  and  we  have  had  amendments 
to  charters  more  numerous  than  the  sands  on  the  shores  of  the  sea. 
We  have  had  mayors  with  powers,  and  mayors  without  powers. 
We  have  had  mayors  who  have  had  the  power  of  appointment  of  all 
officers  and  we  have  had  mayors  who  had  the  appointment  of  only 
a  few.  We  have  had  mayors  who  have  had  power  of  appointment 
without  the  consent  of  the  board  of  aldermen.  We  have  had 
mayors  who  could  only  appoint  with  the  consent  of  the  board  of 
aldermen.  We  have  had  common  councils  of  all  kinds  and  condi- 
tions. We  have  had  one  chamber  of  the  common  council.  We 
have  had  two  chambers  of  the  common  council.  We  have  had  a 
board  of  aldermen  and  a  board  of  assistant  aldermen.  We  have 
had  a  board  of  aldermen  and  a  board  of  councilmen.  We  have  had 
aldermen  elected  at  large  on  a  general  city  ticket.  We  have  had 
heads  of  departments  elected  by  the  people.  We  have  had  heads 
of  departments  appointed  by  the  mayor.  We  have  had  spring  elec- 
tions, and  have  had,  in  a  certain  sense,  minority  representation. 
We  have  had  a  common  council  with  the  power  to  levy  taxes  and 
to  disburse  them,  and  we  have  transferred  that  power  from  the 
board  of  aldermen  to  a  board  consisting  of  the  mayor  and  various 
heads  of  departments.  So,  I  say,  we  have  experimented  with  every- 


398  REVISED  RECORD.  [Tuesday, 

thing  in  the  city  of  New  York.  There  is  no  device  or  method  which 
we  have  not  tried  in  the  course  of  the  last  thirty  or  forty  years. 
But  the  old  system  of  governing  New  York  at  a  distance  by  men,  a 
majority  of  whom  have  no  interest  in  its  government,  so  far  as  its 
local  affairs  are  concerned,  who  have  no  share  of  its  burdens  or 
responsibilites,  is  still  going  on,  and  will  continue  to  go  on  unless 
this  Constitutional  Convention  at  last  prohibits  it.  Therefore,  I 
say  that  in  this  report  of  the  Committee  on  Cities,  however  imper- 
fectly expressed,  however  doubtful  some  of  its  language  may  be, 
however  insufficient  the  mechanism  which  it  provides  for  the 
expression  of  the  will  of  the  locality,  is  at  least  to  be  found  the  two 
principles  recognized  by  all  men  as  essential  to  any  better  local 
self-government  in  cities.  What  else  does  home  rule  mean?  What 
does  it  mean,  except  either  a  direct  grant  of  powers  to  the  govern- 
ment of  cities  over  local  affairs,  some  restriction  of  the  power  of 
the  Legislature  to  interfere  with  existing  charters,  or  else,  as  a  half- 
way measure,  the  passage  of  general  laws  under  which  existing 
municipalities  may  be  reincorporated  and  of  the  opportunities  of 
which  they  make  take  advantage.  That  is  the  rneaning  of  home  rule. 
Those  are  the  advantages  denied  to  the  people  of  the  cities  of  the 
State,  and  which  they  now  demand  as  essential  to  the  better  admin- 
istration of  their  local  affairs. 

Mr.  Chairman,  I  was  indeed  pained  and  surprised  to  hear,  from 
the  lips  of  the  distinguished  President  of  this  Convention,  for  whom 
I  entertain  the  greatest  affection  and  respect,  the  statement  that  the 
State  would  never  give  up  to  the  city  its  control  through  the  Legis- 
lature over  cities  on  any  subject  whatever.  I  quote  his  language: 
"  I  do  not  believe  that  the  people  of  this  State  will  ever  consent,  or 
ought  to  be  asked  to  consent,  to  abandon  their  sovereignty  over 
any  division  of  the  State  with  respect  to  any  of  its  affairs.  Now 
there  are  two  evils  to  be  avoided.  One  is  the  abandoning  of  the 
power  of  the  State  over  the  city.  In  my  judgment,  as  I  said  when 
I  got  up,  the  people  of  the  State  will  never  consent  to  that  in  any 
form."  And  then  the  distinguished  President  went  on  to  say  that 
he  had  seen  times  in  the  city  of  New  York  when  the  dangers  to  our 
city  government  were  only  averted  by  an  appeal  to  the  Legislature. 
But  has  the  President  of  the  Convention  forgotten  that,  after  all, 
the  greatest  injury  that  was  ever  inflicted  upon  a  municipality  was 
inflicted  upon  the  municipality  of  the  city  of  New  York  by  this  very 
system  of  legislative  interference  and  control ;  that,  if  during  the  era 
of  Tweed  regime,  there  had  been  found  in  the  Constitution  a  propo- 
sition against  legislative  interference,  it  would  have  been  impossible 
to  have  changed  the  charter  as  it  was  changed  in  1870,  for  the  sole 


August  14.]  CONSTITUTIONAL  CONVENTION.  399 

purpose  of  appointing  corrupt  men  to  office  and  of  filching  the 
treasury  of  the  city.  With  all  this  long  history  of  misgovernment 
behind  us 

Mr.  Cassidy  —  Mr.  Chairman,  may  I  ask  the  gentleman  a 
question? 

Mr.  Nicoll  —  Certainly. 

Mr.  Cassidy  —  Do  you  not  think  that  cities  could  be  corrupted 
easier  without  the  Legislature  than  they  can  with  it? 

Mr.  Nicoll  —  Why,  of  course,  I  do  not.  That  is  what  I  am 
arguing. 

Mr.  Cassidy  —  And  do  you  believe  that  the  State  should  abandon 
its  sovereign  control  over  cities  and  not  over  the  rest  of  the  State? 
Is  there  any  better  reason  why? 

Mr.  Nicoll  —  It  should  give  at  least  the  same  measure  of  home 
rule  to  cities  as  it  gives  to  villages. 

Mr.  Cassidy  —  And  do  not  the  cities  now  have  the  same  measure 
of  home  rule  that  the  counties,  towns  and  villages  of  this  State  have? 

Mr.  Nicoll  —  Is  there  not  a  provision  in  the  Constitution  against 
passing  special  laws  as  to  villages? 

Mr.  Cassidy  —  Is  there  anything  in  the  Constitution  opposed  to 
the  passage  of  special  laws  for  the  country? 

Mr.  Nicoll  —  Does  not  the  Constitution  say  the  Legislature  shall 
not  pass  special  laws  relating  to  incorporated  villages? 

Mr.  Cassidy  —  And  doesn't  the  Legislature  pass  special  laws  not 
only  for  the  villages,  but  for  the  cities  at  large? 

Mr.  Nicoll  —  Well  they  may  beat  the  devil  around  the  stump, 
but  they  ought  to  obey  the  mandate  of  the  Constitution. 

Mr.  Cassidy  —  Is  there  anything  more  to  be  done  than  to  require 
that  the  Legislature  shall  pass  general  laws  for  the  city  and  country 
alike? 

Mr.  Nicoll  —  There  ought  to  be  general  laws  for  cities,  but  they 
must  differ.  How  can  the  same  general  laws  apply  to  cities  and 
villages? 

Mr.  Cassidy  —  Ought  there  not  to  be  general  laws  for  the 
country,  too? 

Mr.  Nicoll  —  There  ought  to  be  substantially  the  same  measure 
of  home  rule  for  the  people  of  this  State  in  all  the  localities  of  the 
State.  Of  course,  you  cannot  have  the  same  kind  of  home  rule  for 
villages,  towns,  and  counties  that  you  have  for  cities.  The  princi- 
ple ought  to  be  extended. 


400  REVISED   RECORD.  [Tuesday, 

Mr.  Cassidy  —  Then  don't  you  come  back  to  the  President's 
proposition  that  the  State  ought  not  to  abandon  its  sovereignty  over 
any  part  of  the  State? 

Mr.  Nicoll  —  The  people  instead  of  permitting  the  cities  to  be 
governed  by  the  Legislature,  the  people  sitting  in  this  sovc"?ign 
Convention,  should  say  to  the  people  of  the  localities,  you  shall 
govern  yourself  hereafter  on  certain  local  matters  instead  of  being 
governed  by  the  Legislature. 

Mr.  Cassidy  —  But  that  should  be  done  all  over  the  State,  should 
it  not? 

Mr.  Nicoll  —  I  think  I  have  answered  your  proposition. 

Mr.  Cassidy  —  And  that  means  simply  this:  That  the  Legislature 
should  be  shorn  of  its  powers  so  far  as  special  legislation  is  con- 
cerned for  city  and  country  alike? 

The  Chairman  —  Does  the  gentleman  give  way  for  further 
interrogation? 

Mr.  Nicoll  —  Well,  I  am  willing  to  give  way  to  the  gentleman 
as  long  as  he  does  not  repeat  himself. 

Mr.  Schumaker  —  Mr.  Chairman,  with  the  consent  of  the  gentle- 
man, I  would  move  that  this  committee  do  now  rise,  report  pro- 
gress and  ask  leave  to  sit  again.  I  could  listen  to  the  gentleman 
all  day,  but  inasmuch  as  the  hour  is  late,  he  can  continue  his 
speech  some  other  time. 

The  Chairman  —  Does  Mr.  Nicoll  give  way? 

Mr.  Nicoll  —  I  think  I  might  as  well  finish  what  I  have  to  say. 
Now,  I  have  considered  those  two  parts  of  the  committee  amend- 
ment which  I  think  should  obtain  approval  of  everyone  who  desires 
a  better  local  self-government  in  cities.  I  shall  pass  over  those 
parts  of  the  measure  which  I  think  imperfect,  because  its  imper- 
fections have  been,  to  my  mind,  satisfactorily  pointed  out  by  the 
distinguished  gentleman  from  Kings  (Mr.  Jenks),  who  possesses, 
perhaps,  larger  experience  in  the  government  of  cities  than  any 
member  of  this  Convention,  and  by  other  gentlemen  who  have 
anticipated  me  in  this  debate.  Its  chief  defect  is  the  absence  of 
any  mandate  to  the  Legislature  to  pass  general  laws.  All  propo- 
sitions for  reforming  the  government  of  cities  start  with  the  theory 
that  the  Legislature  ought  to  be  commanded  to  provide  for  the  bet- 
ter government  of  cities  by  general  laws.  Such,  at  least,  are  the 
provisions  found  in  most  of  the  Constitutions  of  the  western  States. 
It  was  also  the  provision  found  in  the  cities  article  of  the  Conven- 
tion of  1867.  No  one  disputes  the  proposition  that  it  is  now  in  the 


August  14.]  CONSTITUTIONAL  CONVENTION.  401 

power  of  the  Legislature  to  pass  general  laws  relating  to  the  govern- 
ment of  cities,  but  it  is  notorious  that  the  Legislature  for  many  years 
has  failed  to  exercise  it.  No  scheme  of  home  rule  in  my  judgment 
will  be  acceptable  unless  it  contains  a  mandate  to  the  Legislature  of 
this  State  to  pass  general  laws. 

As  to  the  other  two  propositions,  found  in  this  article,  no  man 
who  has  any  regard  for  the  good  government  of  cities,  or  for  the 
purity  of  their  elections,  ought  to  assent  to  them.  What  is  this 
provision  suggested  with  regard  to  the  police  of  cities?  It  pro- 
poses to  give  the  Governor  power  of  removal  and  appointment. 
What  is  that  but  going  back,  as  Mr.  Holcomb  pointed  out,  to  the 
discarded  system  of  1857?  Under  that  system  the  State  was  divided 
into  districts  in  which  the  Governor  appointed  commissioners  of 
police.  That  system  was  thrown  aside,  I  hope  forever,  twenty 
years  ago.  But  under  this  measure  the  Governor  may  remove  the 
heads  of  a  police  department  upon  almost  any  ground.  He  may 
then  appoint  their  successor,  and  be  ready  in  this  way  to  control 
the  police  of  cities  without  let  or  hindrance  in  every  city  in  the 
State.  Now,  experience  teaches  that  no  such  step  backward  will 
be  tolerated. 

All  of  this  discussion  has  arisen,  in  my  judgment,  from  certain 
political  mistakes  which  were  made  in  the  city  of  New  York,  one  of 
which  was  the  change  of  the  non-partisan  board  of  police  commis- 
sioners, consisting  of  two  Republicans  and  two  Democrats,  to  a 
board  consisting  of  a  majority  of  one  party.  But  the  non-partisan 
character  of  the  board  has  been  restored.  But  in  view  of  the  experi- 
ence of  the  past,  the  unwritten  law  of  non-partisanship  is  not  likely 
to  be  violated  in  the  future.  Another  political  mistake  was  the  pass- 
age by  the  Legislature  in  1893,  of  the  law  which  provided  for  two 
inspectors  of  election  of  the  majority  party  and  one  inspector  of 
election  of  the  minority  party  in  the  city  of  New  York.  Under  our 
election  code  the  police  are  required  to  be  present  at  the  polls  only 
for  the  purpose  of  preserving  order.  They  take  their  directions 
from  the  election  inspectors.  When  the  majority  of  election  inspec- 
tors belong  to  one  party,  they  practically  control  the  police,  and  all 
the  complaints  that  have  ever  been  made  against  the  police,  as  far 
as  the  elections  in  the  city  of  New  York  are  concerned,  proceeded 
from  that  law.  That  law  has  been  repealed.  The  principle  of 
equal  representation  in  election  boards  is  now,  I  believe,  the  settled 
policy  of  this  State. 

Mr.  Hotchkiss  —  Mr.  Chairman,  will  the  gentleman  give  way  for 
a  question?  /" 

20 


402  REVISED   RECORD.  [Tuesday, 

Mr.  Xicoll  —  Certainly. 

Mr.  Hotchkiss  —  May  I  ask  him  whether  the  act  in  relation  to 
the  inspectors  of  election  being  two  to  one  was  not  passed  because 
in  every  town  in  the  State  outside  of  the  city  of  New  York  the  num- 
bers were  undoubtedly  two  to  one,  and  was  it  not  passed  for  the 
purpose  of  giving  us  justice  outside  of  the  cities? 

Mr.  Nicoll  —  That  was  undoubtedly  the  purpose,  but  the  law  in 
New  York  has  always  been  different. 

Now  I  say  that  principle  of  equal  majority  and  minority  election 
officers  has  been  restored  to  the  election  law  in  this  State,  and 
all  we  need  in  place  of  these  two  cumbersome  provisions  is  some 
simple  mandate  such  as  was  reported  by  the  Committee  on  Suffrage 
and  is  to  be  found  upon  general  orders,  declaring  it  to  be  the  policy 
of  this  State  that  all  election  officers  shall  be  divided  equally 
between  the  great  political  parties.  If,  in  addition  to  that,  you 
are  not  willing  to  trust  the  boards  of  police  commissioners  in  cities, 
the  non-partisan  board  of  police  commissioners  to  appoint  the  elec- 
tion officers,  even  though  these  officers  be  nominated  by  political 
parties,  then,  for  heaven's  sake,  let  us  elect  in  the  cities  our  election 
commissioners,  but  under  no  circumstances  affront  the  four  mil- 
lions of  people  who  live  in  the  cities  of  this  State  by  the  suggestion 
that  they  are  less  competent  to  supervise  their  elections  by  their 
own  elected  officers  than  the  people  who  live  in  the  rural  districts. 

In  what  I  have  said,  Mr.  Chairman,  no  desire  has  been  expressed, 
so  far  as  the  municipality  which  I  represent  is  concerned,  to  have 
anything  more  than  its  just,  proper  and  equal  share  in  local  self- 
government.  We  have  no  desire  to  establish  an  imperial  city,  a 
sovereign  and  independent  existence,  like  the  cities  of  ancient  his- 
tory. We  have  no  ambition  to  establish  any  close  corporation  in 
the  city  of  New  York.  There  is  no  portion  of  the  population  of 
this  State  more  loyal  to  its  government,  prouder  of  its  history,  more 
ambitious  for  its  future  than  the  people  of.  the  city  of  New  York, 
but  in  view  of  its  long  history  of  misgovernment,  our  earnest  hope 
and  prayer  to  this  Convention  is  that  in  the  future  you  will  give 
us  our  just  measure  of  local  control,  and  put  an  end  to  that  gov- 
ernment from  a  distance  by  the  Legislature  of  this  State  which  has 
brought  us  in  the  past  fifty  years  such  innumerable  woes. 
(Applause.) 

Mr.  M.  E.  Lewis  —  Mr.  Chairman.  I  move  that  the  committee 
do  now  rise,  report  progress  and  ask  leave  to  sit  again. 

Mr.  Holcomb  —  Mr.  Chairman,  may  I  ask  the  gentleman  to  give 


August  14.]  CONSTITUTIONAL  CONVENTION.  403 

way,  so  that  I  may  have  the  opportunity  to  offer  my  proposed 
amendment  and  have  it  printed? 

Mr.  Hotchkiss  —  Mr.  Chairman,  I  have  no  desire  to  restrict  the 
number  of  amendments  that  shall  lie  upon  the  desk  at  the  same 
time,  but  I  would  like  to  inquire  in  what  dozens  we  are  now;  about 
how  many,  approximately? 

The  Chairman  —  The  Chair  is  unable  to  inform  the  gentleman. 

Mr.  Holcomb  —  I  think  I  should  have  the  same  right  that 
was  enjoyed  by  the  gentleman  from  New  York  the  other  day.  All 
I  want  is  that  my  amendment  shall  be  printed. 

Mr.  Mulqueen  —  Mr.  Chairman,  I  should  like  to  have  the 
gentleman  give  way,  in  order  to  permit  me  to  request  that  my 
substitute,  offered  this  morning,  be  printed. 

The  Chairman  —  That  matter  will  come  up  later. 

•  The  Chairman  put  the  question  on  the  motion  of  Mr.  Lewis,  that 
the  committee  do  now  rise,  report  progress  and  ask  leave  to  sit 
again,  and  it  was  determined  in  the  affirmative. 

President  Choate  resumed  the  chair. 

Chairman  Lincoln,  from  the  Committee  of  the  Whole,  reported 
that  said  committee  had  under  consideration  proposed  constitu- 
tional amendment  No.  369,  reprint  No.  409,  general  order  No.  13, 
and  made  some  progress,  but,  not  having  gone  through  the  same, 
had  instructed  their  chairman  to  ask  leave  to  sit  again. 

The  President  put  the  question  on  agreeing  with  the  report  of 
the  Committee  of  the  Whole,  and  granting  leave  to  sit  again,  and 
it  was  determined  in  the  affirmative. 

Mr.  Mulqueen  —  Mr.  President,  I  ask  unanimous  consent  that 
the  substitute  I  offered  this  morning  be  printed  with  the  other 
amendments  and  substitutes. 

Mr.  Holcomb  —  May  I  ask  whether  that  will  include  my  pro- 
posed amendment  or  substitute? 

The  President  —  I  understand  that  it  will.  It  includes  all  amend- 
ments and  substitutes  proposed  this  morning. 

The  President  put  the  question  on  the  motion  of  Mr.  Mulqueen 
to  print  all  the  amendments  and  substitutes  offered  this  morning 
to  general  order  No.  13,  and  it  was  determined  in  the  affirmative. 

Mr.  Jesse  Johnson  —  Mr.  President,  I  ask  unanimous  consent 
to  submit  a  similar  amendment  which  I  would  like  to  have  printed. 
T  ask  to  insert  after  the  word  "  section  "  on  line  16,  of  page  3 

The  President  —  You  will  have  to  hand  it  to  the  Secretary. 


404  REVISED   RECORD.  [Tuesday, 

Mr.  Johnson  —  I  will  hand  it  to  the  Secretary. 

The  President  —  The  Chair  presents  a  communication  (No.  23) 
from  the  commissioners  of  taxes  and  assessments,  relative  to  trust 
companies  in  the  city  of  New  York,  in  conformity  with  the  resolu- 
tion of  Mr.  I.  S.  Johnson  of  August  first  (No.  161). 

Mr.  Doty  —  Mr.  President,  Mr.  Johnson  asked  me  yesterday  to 
request  that  that  be  printed. 

The  President  put  the  question  on  the  motion  of  Mr.  Doty,  and 
it  was  determined  in  the  affirmative.  (See  Doc.  No.  51.) 

Mr.  Francis  —  Mr.  President,  I  beg  leave  to  present  the  following 
reports. 

The  President  —  Those  are  not  now  in  order  unless  by  the 
unanimous  consent  of  the  Convention. 

Mr.  Acker — I  object,  Mr.  President. 

Mr.  Bowers  —  Mr.  President,  I  ask  that  Mr.  C.  H.  Truax  be 
excused  from  attendance  to-day.  I  received  a  letter  from  him 
stating  that  he  was  detained  in  New  York  on  account  of  his  court 
sitting. 

The  President  put  the  question  on  granting  leave  of  absence 
to  Judge  Truax,  and  it  was  determined  in  the  affirmative. 

Mr.  Francis  —  Mr.  President,  I  ask  that  unanimous  consent  be 
given  for  the  presentation  of  these  reports. 

The  President  —  Does  any  gentleman  object  to  the  presentation 
of  these  reports  by  the  Committee  on  Preamble  and  Bill  of  Rights? 

Mr.  Acker  —  I  object. 

The  President  —  Mr.  Acker  objects.  They  will  be  reserved  until 
to-morrow  morning. 

The  Secretary  read  the  announcement  of  committee  meetings. 

On  motion  of  Mr.  Root  the  Convention  stood  in  recess  until 
eight  o'clock  this  evening. 


Tuesday  Evening,  August   14,   1894. 

The  Constitutional  Convention  of  the  State  of  New  York  met  in 
the  Assembly  Chamber  in  the  Capitol,  at  Albany,  N.  Y.,  August  14, 
1894,  at  eight  P.  M. 

President  Choate  called  the  Convention  to  order. 

The  President  —  The  special  business  for  this  time  is  the  special 
order,  the  consideration  of  Mr.  Tucker's  amendment  on  suffrage 
(O.  I.  194,  p.  195). 


August  14-]  CONSTITUTIONAL  CONVENTION.  405 

Mr.  Bigelow  —  Mr.  President,  at  an  early  period  in  our  delibera- 
tions here  I  had  the  honor  to  submit  to  the  Convention  an  amend- 
ment proposing  to  confer  upon  the  Legislature  the  power  to  extend 
to  the  female  sex  all  or  any  of  the  powers,  privileges,  immunities 
and  exemptions  to  which  they  would  be  entitled,  or  which  they 
would  incur  if  the  word  "male"  were  stricken  from  the  Constitu- 
tion. My  motive  in  presenting  that  —  and  I  would  say  here  that 
it  was  presented  without  knowledge  of  the  amendment  that  I  think 
had  not  been  presented  by  Mr.  Tucker,  and  which  is  now  under 
consideration  —  my  motive  in  presenting  that  was,  to  state  it  very 
briefly,  that  I  thought  it  was  as  well  in  the  existing  division  of 
public  sentiment  upon  this  question  that  it  should  be  handed  over 
to  the  Legislature  to  be  considered  more  deliberately  than  it  would 
be  possible  for  us  to  consider  it  here;  and  also  that  none  of  us 
had  been  elected  upon  this  issue  and  could  not  pretend  to  have 
come  here  with  any  particular  instructions  upon  this  question;  that 
if  we  have  the  matter  debated  in  the  Legislature,  as  it  would  prob- 
ably be,  the  best  light  of  the  country  would  be  brought  to  bear 
upon  the  discuss'ion  of  the  question,  and  we  should  find  a  point  of 
agreement,  either  for  one  side  or  the  other,  where  there  would 
be  less  controversy  than  seems  to  exist  now  and  as  is  developed 
in  and  around  this  Convention. 

But,  Mr.  President,  it  seemed  to  be  the  judgment  of  this  able  and 
distinguished  phalanx  of  ladies,  who  have  been  representing  the 
interest  and  the  cause  of  their  sex  at  this  Convention  so  ably  and 
becomingly;  it  seemed  to  be  their  preference  that  this  question 
should  be  sent  by  the  Convention  directly  to  the  people  for  their 
judgment.  And,  as  I  have  always  found  that  I  was  more  apt  to 
be  right  when  I  agreed  with  the  ladies  than  when  I  disagreed  with 
them,  I  have  concluded  that  what  little  I  have  to  say  or  do  upon 
this  question  shall  be  done  In  favor  of  the  amendment  which  they 
all  seem  to  prefer,  and,  therefore,  I  shall  ask  those,  if  there  are 
any  —  I  know  there  are  some  who  prefer  that  this  matter  should 
go  to  the  Legislature  —  I  shall  ask  them  to  do  as  I  propose  to  do, 
and  support  the  amendment  that  is  now  before  this  Convention. 

I  would  like  to  say  a  few  words  on  the  merits  of  this  question, 
and  I  intend  to  be  brief.  But  before  I  enter  upon  that  subject,  I 
wish  to  separate  this  Convention  from  any  portion  of  the  responsi- 
bility for  one  argument  which  was  presented  before  it  by  one  of 
the  learned  counsel  who  represented,  by  authority,  the  adversaries  of 
female  suffrage. 

The  ladies  who  have  opposed  the  extension  of  the  franchise  to 
their  sex,  with  a  sagacity  and  tact  for  which  the  sex  has  always 


406  REVISED   RECORD.  [Tuesday, 

been  remarkable,  and  in  which  they  have  always  shown  them- 
selves to  have  greatly  the  advantage  of  our  sex,  declined  to  appear 
here  in  defense  of  their  own  case,  wisely.  Wisely,  not  that  they  had 
not  enough  and  to  spare  of  ladies  who  could  have  presented  it  with 
quite  as  much  ability  as  the  other  side  was  presented;  who  have  all 
the  eloquence  and  the  logic  that  would  be  necessary  to  do  justice 
to  their  cause,  but  they  realized  that  the  very  strength  and  ability 
with  which  they  presented  their  case  would  defeat  it.  It  would 
be  undermining  the  ground  on  which  they  stood  —  sawing  off  the 
limb  of  the  tree  on  which  they  sat.  It  would  be  a  repetition  of  the 
old  fable  of  the  lady  who  found  that  the  garment  she  had  been 
weaving  all  day  was  unravelled  in  the  course  of  the  night. 

Well,  they  sent  some  lawyers  here  to  present  their  case.  One  of 
those  gentlemen,  a  gentleman  for  whom  I  have  personally  the  very 
highest  respect,  both  professionally  and  personally,  in  the  course 
of  his  speech,  used  this  language,  and  I  take  it  from  the  reports: 

"  The  number  of  prostitutes  in  the  city  of  New'  York  alone  has 
been  estimated  at  from  thirty  to  fifty  thousand.  Every  city  in  the 
State  adds  its  quota  to  this  disreputable  army.  These  women,  who 
live  by  selling  themselves,  soul  and  body,  would,  of  course,  sell  their 
votes.  There  is  no  class  among  the  present  voting  population  "- 
please  mark  these  words  —  "  there  is  no  class  among  the  present 
voting  population  analogous  to  this  degraded  and  unfortunate  army 
of  lost  women." 

Mr.  President,  I  would  not  like  to  have  uttered  that  sentence. 
What  is  the  implication?  That  the  female  sex,  your  mothers,  your 
sisters,  your  daughters  and  your  wives,  belong  to  a  class  who  are 
outside  the  pale  of  human  charity,  and  to  whom  the  grace  of  God 
is  not  accessible.  They  are  distinguished  from  the  male  sex  for 
the  complete  incurableness  of  their  depravity.  The  least  that  can 
be  said  of  this  language  is  that  it  is  blasphemous. 

Now,  Mr.  President,  if  there  is  any  class  of  people  in  this  world 
who  are  the  object  of  commiseration  it  is  the  women  who  have 
strayed  from  the  path  of  virtue.  But  there  never  was  a  woman 
who  strayed  from  the  path  of  virtue  who  had  not  a  male  co-respond- 
ent more  wicked  than  she.  When  our  Saviour  said  to  the  woman 
taken  in  adultery:  "  Go  and  sin  no  more,"  what  did  He  say  to  the 
men  who  accused  her  and  who  wanted  permission  to  stone  her: 
"  You  that  are  without  sin  cast  the  first  stone."  And  they  all 
retired,  from  the  first  unto  the  last,  in  silence.  Far  be  it  from  me 
to  presume  to  interpret  the  ways  of  God  to  men,  but  I  will  venture 
to  say  that  one  of  the  reasons  why  the  language  used  was  so  differ- 
ent in  the  two  cases  was  that  to  have  said  to  the  men,  "  Go  and  sin 


August  14.]  CONSTITUTIONAL  CONVENTION.  407 

no  more,"  would  have  been  a  waste  of  words;  and  He  knew,  for 
He  knew  all,  that  when  He  said  to  the  woman,  "  Go  and  sin  no 
more,"  that  His  advice  would  not  be  wasted. 

And  yet  it  is  upon  this  distinction  that  we  are  asked  and  expected, 
by  our  vote  here  to-night,  to  proclaim  upon  the  housetops,  and  to 
write  it  in  the  Constitution  of  the  State,  that  the  sex  from  which 
we  derive  our  being  is  so  incurably  depraved  that  they  cannot  be 
trusted  with  the  franchise. 

The  particular  claim  that  is  referred  to  here  is  that  this  class  sell 
themselves,  and  that  people  who  sell  themselves  are  not  entitled  to 
the  franchise.  That  seems  to  me  the  burden  of  this  argument. 
But,  Mr.  President,  let  us  see  where  we  shall  draw  the  line.  Accord- 
ing to  my  experience  there  are  occasional  sales  of  that  sort  among 
our  own  sex.  It  is  only  while  we  have  been  sitting  here  that  we 
have  heard  that  the  captains  of  police  and  their  assistants  in  the  city 
of  New  York  have  been  found  selling  themselves  for  various  con- 
siderations, and  great  scandal  has  arisen  in  consequence.  If  you 
were  to  draw  the  line  at  all  those  who  are  unfit  to  be  captains  of 
police,  you  would  reduce  the  male  franchise  very  considerably. 

We  heard  from  one  of  the  eloquent  speakers  to-day  a  good  deal 
about  the  Tweed  charter.  It  is  but  a  few  years  ago,  according  to 
the  authority  of  an  eminent  Republican  judge  in  the  city  of  New 
York,  that  Mr.  Tweed  carried  the  charter  through  the  Legislature 
of  this  State  for  the  city  of  New  York,  and  that  six  of  the  Senators 
received  each  $10,000  for  his  vote,  $5,000  more  for  votes  on  kindred 
subjects,  and  $5,000  more  for  the  vote  for  the  next  year.  Now, 
then,  shall  we  draw  a  line  that  will  exclude  all  the  legislative  class? 

While  we  have  been  sitting  in  this  Convention,  Mr.  President,  the 
Senate  of  the  United  States  has  been  obliged  to  purge  itself  upon 
oath,  and  not  with  entire  success,  either,  of  having  sold  itself,  not  for 
soap,  but  sugar.  (Applause.)  Will  you  draw  your  line  at  the 
United  States  Senate?  You  will  remember  a  Vice-President  of  the 
United  States  who  was  driven  into  Coventry,  out  of  public  life,  for 
allowing  himself  to  be  sold  to  a  corporation.  Some  of  you  may, 
perhaps,  suspect  that  I  am  not  going  to  stop  there.  You  may  be 
thinking  of  the  election  of  1876.  If  you  think  I  am  going  to  dis- 
turb the  treacherous  ashes  of  partisanship  in  this  assemblage,  you 
will  be  disappointed.  But  I  will  say  this,  that  if  you  are  going  to 
draw  your  line  against  the  present  voting  class  who  sell  themselves, 
I  commend  to  you  the  advice  which  the  farmer  gave  to  a  man  about 
cutting  off  his  dog's  tail:  Cut  it  off  right  behind  the  ears. 
(Laughter.) 

It  is  the  misfortune,  not  of  one  sex;  it  is  the  misfortune,  not  of  one 


4o8  REVISED   RECORD.  [Tuesday, 

class,  not  of  one  rank  in  society,  to  be  under  influences  which  more 
or  less  bias  their  political  judgments.  None  of  us  are  free  from  it. 
I  am  not  sure  that  any  of  us  ought  to  be  entirely  insensible  to  such 
considerations,  but,  at  all  events,  none  of  us  are;  and  the  idea  of 
proscribing  our  wives  and  our  mothers  for  such  motives,  I  think, 
is  weak. 

It  has  often  been  mentioned  in  my  presence  that  this  would  effect 
a  fearful  increase  of  the  vote,  doubling  our  vote;  that  it  is  bad 
enough  now,  but  that  if  you  double  it  you  would  make  it  twice  as 
bad.  Well,  I  am  not  going  to  discuss  that  question  here.  I  will 
say  simply  this:  In  twenty-five  years,  according  to  all  statistical 
authorities  that  have  been  adduced  from  past  experience,  the  vote 
of  this  State  will  be  doubled;  and  then  what  are  you  going  to  do 
about  it?  Why,  yon  will  do  just  what  you  always  have  done  when 
the  vote  has  been  increased :  you  will  put  up  more  booths,  you  will 
print  more  tickets,  you  will  have  a  few  more  inspectors,  and  a  little 
more  money  to  get  the  vote  of  a  few  more  people.  That  is  as 
simple  a  problem  as  can  possibly  be  presented  to  the  Legislature,  to 
provide  for  the  doubling  of  the  vote.  I  hope  that  that  is  enough  to 
say  for  that  proposition. 

One  of  my  colleagues  a  few  days  ago  said  to  me  that  he  under- 
stood I  thought  of  saying  something  upon  this  question,  and  that 
I  was  in  favor  of  this  amendment.  He  said  he  found  only  one 
difficulty  with  it,  which  was,  that  he  was  fearful  that  the  extension 
to  the  female  sex  of  the  privilege  of  voting  and  holding  office  would 
lead  to  domestic  dissensions  of  a  serious  character;  and  he  asked 
me  if  I  would  say  something  upon  that  subject  if  my  mind  was 
clear  upon  it.  I  told  him  that  my  mind  was  clear  upon  that  sub- 
ject. And  there  may  be  others  besides  him  who  have  the  same 
difficulty,  which  is  very  probable  —  because  I  remember  that  it  was 
the  first  difficulty  that  occurred  to  me  when  this  question  promised 
to  become  a  subject  on  which  I  would  have  to  vote  here;  the  first 
difficulty  that  presented  itself  to  my  mind  was  that  possibly  it  might 
be  the  source  of  domestic  unhappiness  and  infelicity. 

There  are  two  answers  which  I  will  make  to  that  proposition. 
In  the  first  place  we  have  never  thought  it  necessary  to  pass  a  con- 
stitutional provision,  or  to  legislate  against  allowing  men  to  marry 
women  of  a  different  religion.  Now,  everyone  knows  that  differ- 
ences of  religion  are  very  much  more  difficult  to  reconcile  than 
political  differences,  because  they  involve  questions  of  conscience, 
and  are  and  always  have  been  the  sources  of  greater  tur- 
bulence and  disorder;  because  they  are  questions  about  which  peopV 
who  are  serious  and  in  earnest  feel  that  they  cannot  compromise. 


August  14.]  CONSTITUTIONAL  CONVENTION.  409 

Political  differences  are  not  of  that  character.  Why  should  it  be 
more  difficult  to  harmonize  on  political  differences  than  it  is  upon 
religious  differences? 

But  I  would  ask  in  the  next  place,  how  do  we  get  along  with  the 
fathers,  the  brothers  and  sons  of  a  family  who  do  not  happen  to 
agree  in  politics?  We  do  not  make  any  law  to  prevent  a  son  from 
differing  from  his  father  politically,  and  we  do  not  think  it  neces- 
sary to  make  any  provisions  to  prevent  riot  and  disorder  in  families 
on  account  of  it.  Is  there  any  reason  in  the  world  why  a  man  and 
his  wife  should  quarrel  about  an  office  any  more  than  the  man  and 
his  son  or  the  man  and  his  brother  should  quarrel? 

The  fact  is,  Mr.  President,  that  men  will  be  men  and  women  will 
be  women;  and  the  man's  power  over  the  woman,  and  the  woman's 
power  over  the  man  will  continue  to  be  just  what  it  is  and  always 
has  been  from  the  foundation  of  the  world  in  politics,  with  the  vote 
or  without  the  vote,  in  office  or  out  of  office;  and  when  the  husband 
says  he  does  not  want  his  wife  to  run  for  an  office,  he  will  be  most 
infelicitously  married  if  he  does  not  have  his  way.  And  in  that 
case  all  I  have  to  say  is  that  if  they  did  not  quarrel  about  that 
matter  they  would  be  sure  to  quarrel  about  something  else. 

One  of  the  lawyers  who  advocated  the  case  of  the  anti-suffragist 
here  presented  the  somewhat  singular  theory  that  the  foundation  of 
government  was  force;  and  inferred  from  that  that  women  not  being 
as  strong  as  men  were  not  fit  to  participate  in  the  government. 
That  I  believe  was  the  logic  of  the  argument,  so  far  as  there  is  any 
logic  possible  in  such  a  proposition.  I  would  have  liked  to  have  asked 
that  gentleman  what  force  is?  Did  he  ever  feel  force?  Did  he  ever 
see  force?  Did  he  ever  smell  or  taste  force?  Has  force  any  sex? 
He  cuts  off  his  arm,  and  his  force  ceases.  He  has  laid  down  in  the 
dark,  in  the  language  of  Job.  and  where  is  his  force?  The  author 
of  the  nebular  hypothesis,  as  it  is  called,  demonstrated  to  the  satis- 
faction of  the  scientific  world  that  the  sun  provided  all  of  the  powers 
and  forces  which  are  known  upon  this  planet;  but  at  the  same  time 
he  was  obliged  to  admit  that  force  had  to  precede  the  sun.  If  you 
want  to  learn  what  force  is,  you  have  to  learn  what  infinite  power 
is  for  all  force  comes  from  the  source  of  all  power.  Did  you  ever 
hear  of  any  such  thing  as  sex  in  connection  with  force?  I  take  it 
upon  myself  to  say  that,  in  every  language  that  is  written,  except  our 
own,  force  is  feminine;  in  our  own  it  is  neuter.  Now,  the  idea  that 
a  question  of  this  character  is  to  be  settled  by  the  difference  in  the 
force  or  the  physical  strength  of  the  sexes!  I  almost  feel  I  ought  to 
apologize  for  referring  to  it. 

A  point  upon  which  a  great  deal  of  weight  has  been  placed  is.  that 


4io  REVISED   RECORD.  [Tuesday,. 

the  women  do  not  want  the  suffrage,  and  that  it  would  be  cruel  to- 
impose  it  upon  them.  I  will  say  in  a  word  all  that  need  to  be  said 
upon  that  subject,  without  admitting  or  denying  the  fact  stated 
that  women  do  not  want  suffrage,  although  the  evidence  before  this 
Convention  shows  the  very  contrary  state  of  opinion.  There  has 
never  been  a  time  when  an  addition  has  been  made  to  the  suffrage, 
from  the  foundation  of  the  world,  upon  the  petition  or  the  solicita- 
tion of  the  party  receiving  it.  I  defy  any  member  of  this  Conven- 
tion to  name  an  instance  in  which  the  sovereign  power  or  the  voting 
power  has  yielded  the  suffrage  to  a  class  because  that  class  wanted  it. 

It  has  always  been  given  because  one  party  or  the  other  of  the 
voting  class  wanted  the  suffrage  of  these  people,  who,  they  hoped, 
would  strengthen  their  party;  and  in  that  way  the  suffrage  has 
been  continually  increased,  but  always  for  the  benefit  and  for  the 
interest  of  those  who  have  the  suffrage  already.  And,  now,  as  to 
this  cruelty  question,  I  want  to  say  a  word.  It  has  been  contended 
here  that  it  would  be  very  cruel  to  impose  upon  women  the  duty  of 
voting.  Mr.  President,  I  never  found  any  inconvenience  about 
voting.  I  never  voted  against  my  wishes.  I  think  I  have  always, 
since  I  have  been  of  age,  voted  upon  State  and  national  questions, 
but  I  do  not  remember  to  have  once  voted  against  my  wishes,  nor 
wished  that  I  had  not  voted  or  considered  it  a  burden ;  and  I  venture 
to  say  that  the  same  remark  could  be  made  of  every  delegate  in  this 
Convention.  They  would  not  have  voted  if  they  had  not  wished 
to  vote.  It  takes  very  little  time  to  cast  a  vote. 

Therefore,  the  question  remains,  would  the  liabilities  and  duties 
that  attend  voting  be  oppressive  to  the  women?  No,  except  in  pre- 
cisely the  cases  where  it  is  oppressive  to  the  male  sex,  and  that  is, 
when  they  want  other  people  to  vote  for  them  and  other  people  do- 
not  want  to  vote  for  them.  That  is  the  difficulty.  Those  are  the 
people  who  work  so  hard  at  the  polls.  But  for  the  voter  himself,, 
who  has  nothing  to  do  but  to  go  and  deposit  his  ballot,  there  is  no- 
more  trouble  about  it  than  he  has  in  smoking  his  after-breakfast 
cigar.  Nobody  has  any  complaint  to  make,  except  those  who  want 
to  get  other  people  to  vote  for  them  who  do  not  want  to  vote  for 
them. 

This  cry  about  cruelty  to  women  reminds  me  very  much  of  a 
dialogue  that  passed  between  little  Johnnie  and  his  mother. 
"Johnnie,"  said  his  mother,  "  your  little  sister  has  been  hauling  you 
on  her  sled  for  half  an  hour;  why  don't  you  get  off  and  haul  her?" 
"  Mamma,"  says  little  Johnnie,  a  genuine  incipient,  inchoate  anti- 
suffragist,  "  I  am  afraid  she  will  take  cold,"  and  that  is  precisely  the 


August  14.]  CONSTITUTIONAL  CONVENTION.  41 1 

kind  of  sympathy  that  is  felt  for  the  ladies  when  we  hesitate  to 
impose  upon  them  the  burdens  of  the  franchise. 

Now,  then,  one  word  about  the  effect  of  the  ballot  upon  the 
female  sex.  (I  am  trying  as  much  as  possible  to  avoid  the  subjects 
that  have  been  already  fully  treated  here;  this  is  one  which  I 
believe  has  not  been  touched.)  It  is  apprehended  that  if  women  are 
allowed  to  vote,  they  may  be  candidates  for  office,  and  they  may 
make  bad  officers,  and  there  will  be  confusion  in  politics.  In  fact 
I  have  never  heard  it  stated  exactly  what  they  would  do,  but  it  was 
something  very  bad  according  to  the  general  description. 

Xow,  I  would  imagine  the  case  of  a  woman  who  is  a  candidate 
for  office.  Would  not  the  very  fact  that  she  wished  to  hold  an 
office  constitute  a  guarantee  that  does  not  exist  to-day  that  she 
would  be  loyal  to  all  her  duties  as  a  wife  and  a  mother?  For  she 
would  know  that  she  was  liable,  if  exposed  to  any  suspicion,  to 
have  that  brought  into  the  canvass,  and  prove  fatal  to  her  interests. 
Though  I  should  be  very  far  from  desiring  to  encourage  or  recom- 
mend it,  and  far  from  apprehending  that  women  would  generally 
want  offices  of  any  particular  importance,  still  I  am  satisfied  that 
if  they  did,  the  responsibility  resting  upon  them,  the  possibility  of 
exposure  to  criticism,  would  operate  to  make  them  infinitely  more 
careful  and  circumspect  than  they  are  at  present.  Therefore, 
instead  of  being  an  objection,  I  think  it  is  a  very  desirable  restraint. 
On  the  other  hand  —  and  this  is  itself  of  some  importance  —  were 
any  aspersions  cast  upon  woman's  character,  the  resentment  that 
would  follow,  if  the  criticism  were  unjust,  would  in  itself  be  a  great 
protection  for  her. 

Now,  Mr.  President,  I  do  not  wish  to  occupy  any  more  of  the 
time  of  the  Convention.  I  feel  that  I  owe  you  an  apology  for  the 
time  I  have  already  taken;  but  I  wish  to  ask  this  question:  Do  you 
wish,  do  you  dare  go  home  to-night  and  say  to  your  mothers,  if 
you  are  so  fortunate  still  as  to  have  them,  or  your  wives,  if 
you  are  so  fortunate  as  to  have  wives:  "I  have  proclaimed  to-night 
in  the  capitol  of  this  State,  to  be  read  of  all  men,  that  you  are 
not  fit  to  have  the  franchise,  to  vote  for  a  school  trustee  that  is  to 
educate  your  children,  to  vote  for  legislators  who  are  to  determine 
your  rights,  and  the  rights  of  your  husband  and  children.  You 
are  not  fit,  you  are  not  competent  to  vote  for  any  political  pur- 
pose whatsoever?  "  I  answer  that  if  the  question  laid  between  you 
and  your  families  there  would  be  but  one  class  of  votes  cast  this 
night. 

We  have  heard  a  good  deal  of  good  advice  and  bad  from  lawyers 
upon  this  subject,  and  I  will  conclude  by  quoting  one  other 


4I2  REVISED   RECORD.  [Tuesday, 

case  from  an  eminent  lawyer  who  flourished  some  eighteen  cen- 
turies ago,  but  he  had  a  level  head.  There  was  an  effort  making 
to  stone  and  kill  two  innocent  men  that  happened  to  differ  in 
some  religious  doctrines  from  the  Hebrews  of  that  period,  in  Pales- 
tine. He  said  to  them :  "  I  counsel  you  to  go  slow."  He  referred 
to  two  or  three  cases  where  they  had  got  into  serious  troubles  from 
the  same  processes  which  they  were  resorting  to  then.  He  said: 
"  If  this  thing  is  of  men,  it  will  come  to  naught,  but,  if  it  is  from 
God,  you  will  be  overthrown."  They  concluded  that  he  was  right, 
and  they,  therefore,  agreed  with  him.  They  beat  the  disciples  and 
let  them  go. 

Now,  Mr.  President,  the  women,  following  the  example  of  these 
Hebrews,  have  already  been  beaten  in  the  Suffrage  Committee 
room;  and,  now,  following  out  the  example,  I  propose  that  we 
should  let  thenn  go,  go  to  the  people  and  let  the  people  say  whether 
they  are  entitled  to  the  franchise  or  not.  (Applause.) 

The  President  —  Mr.  Lauterbach  desires  to  present  a  petition. 

Mr.  Lauterbach  —  Not  to  make  a  speech,  Mr.  President.  I  desire 
to  present  what  will  probably  be  the  final  petition  to  be  presented  to 
this  Convention  in  favor  of  the  prayer  to  strike  the  word  "  male  "  from 
the  Constitution.  The  petition  represents  the  additional  petitions 
from  New  York,  Erie,  Cayuga,  Monroe,  Washington  and  five  other 
counties,  signed  by  1,215  women  and  493  men,  making  a  total  of 
1,708.  Barring  some  inaccuracies  that  may  have  occurred  in  com- 
puting the  number  of  signatures,  I  am  informed  that  the  total 
signatures  and  indorsements  to  date  represents  626,627. 
(Applause.) 

The  President  —  The  petition  will  be  received  and  placed  in  the 
archives. 

Mr.  Mantanye  —  Mr.  President,  I  have  listened  to  the  remarks 
that  have  been  made  here  by  the  Various  gentlemen  on  the  two  or 
three  preceding  evenings  and  also  to  those  that  have  been  made 
here  to-night.  It  seems  to  me  that  they  are  hardly,  as  we  some- 
times say  here  in  the  Convention,  when  calling  somebody  to  order, 
that  they  are  hardly  germane  to  the  proposed  amendment  and 
report  under  consideration.  The  gentlemen  have  discussed  the 
question  as  to  the  right  or  wrong,  or  the  propriety  of  striking  the 
word  "  male  "  from  the  section  in  question  in  the  Constitution, 
when  that  is  not  the  question  here  at  all.  What  we  seem  to  be 
considering  here  is  a  way  in  which  we  may  dodge  that  question, 
and  all  of  these  impassioned  speeches  that  we  have  heard  here  from 
gentlemen  who  have,  with  clinched  fists  and  with  closed  eyes, 


August  14.]  CONSTITUTIONAL  CONVENTION.  413 

appealed  to  the  sense  of  justice  and  manhood  in  this  Convention, 
when  we  come  to  compare  their  speeches  and  apply  them  to  this 
proposition  which  is  here,  it  seems  to  me  very  much  like  the  travail 
of  the  mountain  to  bring  forth  the  very  small  mouse.  For  this  is 
not  to  say  whether  we  believe  that  the  right  of  suffrage  should  be 
given  to  women  or  not,  but  it  is  to  evade  that  question  and  to  send 
it  back  to  the  people  who  sent  us  here  to  render  some  sort  of 
decision  upon  that,  matter.  Now,  I  honor  and  respect  the  gentle- 
men of  this  committee  which  made  this  report.  They  have  first 
decided  that  it  is  their  belief,  founded  upon  their  knowledge  of  the 
wishes  of  the  constituents  that  they  are  here  to  represent,  that 
the  people  do  not  want  the  word  "  male  "  stricken  from  the  Con- 
stitution at  this  time.  And,  therefore,  I  say  that  if  they  have 
arrived  at  that  conclusion,  they  have  no  right  to  turn  around  and 
say,  that,  believing  that,  having  the  knowledge  that  gives  us  that 
belief,  we  will  refer  it  back  to  the  people  to  vote  upon,  when  we 
already  know  and  have  declared  our  knowledge  of  what  they  wish 
in  that  matter.  It  seems  to  me  that  it  is  entirely  wrong.  It  is 
beneath  the  honor  and  the  dignity  of  a  Convention  of  this  kind  to  do 
such  a  thing  as  that,  and  I  hope  the  gentlemen  of  this  Convention 
will  sustain  the  report  of  this  committee  upon  this  proposition,  as 
it  seems  inclined  to  do  and  willing  to  do  upon  the  main  proposition. 
I  say,  seems  inclined  to  do  and  willing  to  do,  because  those  who 
pretend  and  claim  that  they  are  in  favor  of  woman  suffrage  by  their 
speeches  here  have  not  taken  and  brought  up  for  consideration 
an  adverse  report  upon  the  proposition  to  strike  out  the  word 
"  male "  from  the  Constitution,  to  which  question  the  speeches 
they  have  made  would  be  entirely  pertinent.  But  they  have 
chosen  this  proposition  solely  that  they  will  not  act  upon  that 
proposition,  but  that  they  will  send  it  back  to  the  people  for  them 
to  vote  upon  and  to  pass  upon.  Now,  I  think  that  if  we  do  that, 
we  discredit  ourselves;  we  lessen  the  respect  that  the  people  should 
have  for  our  work  here,  and  for  the  Constitution  that  we  may  pro- 
pose and  submit  to  them.  I  should  not  hesitate  with  the  report  of 
the  committee  upon  this  proposition  voted  down,  and  my  vote 
recorded  here  in  favor  of  this  report,  to  go  back  to  my  own  people, 
because  I  believe  that  they  never  would  honor  a  coward,  one  who 
had  been  afraid  to  stand  up  for  his  opinions,  and  to  have  the  courage 
of  his  opinions.  They  would  feel,  if  I  had  voted  against  this 
adverse  report,  that  I  was  afraid,  that  I  had  been  dodging  the 
question,  that  I  had  been  cowardly  and  dishonest  in  this  matter, 
and  even  those  of  my  constituents,  my  more  immediate  constituents, 
even  those  who  are  in  favor  of  universal  suffrage,  would  think 


4I4  REVISED   RECORD.  [Tuesday, 

better  of  me  than  if  I  should  merely  cast  a  vote  in  favor  of  this 
matter  of  submission. 

Now,  as  I  have  said,  I  do  not  understand  or  think  that  this 
question  is  before  this  Convention  on  the  consideration  of  this 
adverse  report,  as  to  whether  it  is  proper  at  this  time  to  extend 
the  suffrage  to  women.  That  is  not  the  question  here.  Still,  if  that 
were  the  question,  if  we  had  no  reason  to  doubt  our  belief,  which  we 
have  expressed,  which  has  been  expressed  by  this  committee,  that 
the  people  do  not  consider  it  proper  to  make  this  change  at  this  time, 
if  we  had  any  reason  to  doubt  it,  when  we  come  to  consider  these 
very  petitions  themselves  and  the  manner  in  which  they  are  made 
up,  I  think  that  we  could  clear  up  all  doubts  of  that  kind.  I  have 
been  examining  here  the  minority  report  made  by  the  gentleman 
from  New  York  (Mr.  Tucker),  in  which  he  states  that  in  these 
petitions  that  have  been  presented  to  this  Convention  and  memori- 
als, they  are  signed  by  171,449  women.  Now,  that  would  be  per- 
haps about  ten  per  cent  of  the  number  of  women  in  this  State  that 
would  be  entitled  to  vote  if  the  word  "male"  was  stricken  from 
this  section  of  the  Constitution  in  question;  about  ten  per  cent,  and 
this,  after  a  thorough  canvass  has  been  made.  There  are  also  the 
signatures  of  119,074  men.  That  is  less  than  ten  per  cent  of  the 
male  voters  in  this  State.  This  report  also  says  that,  in  addition  to 
those,  are  the  names  on  the  petition  presented  by  the  Woman's 
Christian  Temperance  Union,  amounting  to  73,000.  But  nearly  all 
those  names  are  on  the  other  petition,  so  in  making  up  this  large 
number  that  is  paraded  here,  those  names  seem  to  be  counted 
twice.  Then  it  is  stated,  in  addition,  that  there  is  a  resolution,  or 
what  purports  to  be  a  resolution  or  certificate,  to  the  effect  that 
the  State  Grange,  which  represents  50,000  more  men,  is  in  favor 
of  it.  Now,  we  have  not  the  signatures  of  those  members.  I  do 
not  know  whether  the  members  of  the  Grange  are  in  favor  of  it  or 
not.  I  have  heard  from  Mr.  Woolston,  who  is  one  of  the  leading 
officers  of  the  State  Grange.  When  his  attention  was  called  to  the 
fact  through  the  papers  that  such  a  memorial  was  presented,  he 
said  it  was  a  surprise  to  him;  that  he  had  attended  the  meetings, 
and  that  he  knew  that  the  members  of  the  Grange  were  not  in 
favor  of  it,  as  a  body,  and  that  the  members  of  the  Grange  were  not 
in  favor  of  it,  individually.  I  find,  on  examining  the  petition  from 
my  own  county  of  Cortland  that  there  are  upon  that  petition  about 
3,800  names.  From  the  town  of  Cortlandville,  which  is  mainly 
made  up  of  the  village  of  Cortland,  a  village  of  10,000  inhabitants, 
are  669  names  of  women.  From  other  towns  in  which  an  equally 
thorough  canvass  was  made  from  house  to  house  by  a  committee- 


August  14.]  CONSTITUTIONAL  CONVENTION.  415 

man  from  each  town,  there  were  only  found  435  who  would  sign,  out 
of  a  total  of  6,400  voters.  About  seven  per  cent  of  the  women  in 
the  country,  in  the  rural  districts,  have  signed  that  petition,  and  in 
that  county  of  Cortland  I  think  there  are  five  local  Granges,  besides 
the  county  Grange,  so  that  it  would  seem  from  that  that  the  mem- 
bers of  the  Grange  could  not  be  very  strongly  in  favor  of  this  matter 
-of  female  suffrage.  Now,  while  there  appear  upon  this  petition  from 
the  town  of  Cortlandville  699  signers,  women,  and  1,052  men,  I 
will  say  this,  that  no  man,  woman  or  child  in  the  town 
of  Cortlandville  or  in  the  county  of  Cortland  has  ever  said 
one  word  to  me  in  favor  of  woman  suffrage,  and  I  have 
seen  them  often  since  this  Convention  commenced  its  sittings. 
On  the  contrary,.  I  have  been  approached  by  a  great  many, 
both  men  and  women,  in  regard  to  the  matter,  who  have 
spoken  strongly  in  opposition  to  it  and  urged  upon  me  action 
.against  it.  The  men  put  it  upon  the  ground  that  we  have  often 
heard  urged  here  that  the  women  of  the  households  don't  want  it. 
They  do  not  wish  to  have  this  duty  and  burden  put  upon  them. 
They  prefer  to  continue  such  duties  and  such  rights  as  they  have 
had.  They  believe  that  their  influence  will  be  greater  than  it  will 
be  if  they  are  put  upon  the  level  with  men  —  that  they  stand  now 
above  them  —  that  men  listen  more  to  their  advice  than  they 
would  if  they  were  put  upon  the  same  level  and  thrown  together  in 
the  same  arena  of  politics.  They  say  alsp  that  they  do  not  feel  that 
it  is  a  burden  or  a  duty  which  belongs  to  women  any  more  than  it 
would  to  go  upon  a  jury,  or  to  go  into  a  field  behind  a  plough,  or  in 
the  cornfield  to  work  —  that  there  are  certain  duties  for  men  and 
also  certain  duties  for  women  in  making  up  the  social  and  political 
fabric  that  we  call  government.  Women  have  expressed  the  same 
view  to  me.  It  is  said  that  all  the  women  who  labor  and  are  in 
business  desire  this  suffrage.  I  have  called  upon  those  who  are 
in  business,  and  I  find  that  they  are  not  in  favor  of  it.  They  use 
these  same  arguments  against  having  the  suffrage.  As  I  have 
stated,  I  have  had  no  one  say  one  word  to  me  in  my  county,  or  in 
my  home,  or  about  it,  in  favor  of  suffrage  for  women. 

But,  now  suppose  that  this  amendment  that  is  proposed  here 
should  pass.  What  would  be  the  effect  of  it?  This  is  to  submit 
this  matter  to  the  people  to  be  voted  upon  by  them,  and  when  it 
goes  to  the -people,  sent  there  in  this  way,  the  argument  would, 
perhaps,  be  used,  and,  undoubtedly,  would  be  used,  that  it  was  a 
sort  of  indorsement  from  this  Convention,  and  that  would  be  used 
as  an  argument  in  favor  of  it,  when  it  was  not  intended  as  such  by 
vthe  Convention.  Further  than  that,  by  what  rule  would  we  be 


REVISED   RECORD.  [Tuesday, 

governed?  Now,  Mr.  Marshall  has  introduced  here  a  proposed 
amendment  to  the  Constitution  in  regard  to  the  submission  of  future 
amendments  to  the  Constitution.  It  wars  agreed  in  the  Committee 
of  the  Whole,  where  the  matter  was  discussed  and  looked  over,  that 
it  was  a  very  proper  thing,  that  it  was  a  very  proper  provision, 
because  it  provided  that  there  must  be  a  larger  vote,  that  these 
amendments  should  be  voted  upon  by  at  least  a  majority  of  those 
who  are  qualified  to  vote  upon  that  question.  But  that  provision 
only  applies  to  future  amendments,  which  should  be  submitted 
through  the  Legislature,  or  which  may  be  submitted  by  a  future 
Constitutional  Convention.  Those  provisions,  if  they  become  the 
Constitution  of  the  State,  by  adoption  this  fall,  would  not  apply 
to  the  submission  of  this  matter,  because  it  does  not  come  within 
either  of  those  classes  which  are  provided  for  by  that  section,  as  to 
the  adoption  of  future  amendments,  and,  therefore,  there  might  be 
men  withholding  their  votes,  and  it  might  be  passed  when  less 
than  twenty  thousand  votes  were  cast  upon  that  question;  some 
small  number,  insignificant  number,  which  would  not  express  the 
wishes  of  the  people  at  all.  True,  it  may  be  said  that  if  the  people 
allow  it  to  be  passed  in  that  way,  by  default,  by  a  few  votes,  without 
voting,  they  impliedly  consent  to  it.  But  that  is  one  of  the  very 
evils  we  desire  to  guard  against  as  to  future  amendments  that  are 
to  be  brought  in  here.  It  is  conceded  that  it  is  an  evil  that  pro- 
visions can  be  adopted  in  that  way.  So  I  say  it  will  be  a  dangerous 
matter  for  us  to  have  this  proposition  submitted  to  the  people  in 
that  way,  when  there  will  evidently  not  be  a  full  vote  and  expression 
of  the  people  upon  it.  I  say  we  are  not  here  to  refer  matters  back 
to  the  people.  We  are  here  as  the  representatives  of  the  people, 
upon  the  supposition  that  we  may  know  and  ascertain  what  the 
people  want,  and  we  are  to  act  upon  our  belief  as  to  what  they  wish 
done  in  the  matter  of  this  Constitution,  and  that  we  will  formulate 
it,  put  it  into  the  form  that  we  think  they  desire  to  have  it  put  in, 
and  then  submit  it  to  them  for  adoption.  They  do  not  want  us 
here  to  dodge  our  duty,  to  play  the  coward  or  play  any  dishonest 
tricks  with  the  Constitution  or  Constitution  making  by  doing  any- 
thing of  this  kind,  by  leaving  the  main  question,  refusing  to  pass  it, 
as  we  must,  because  the  main  question  has  not  been  brought  up 
here  by  any  objection  to  the  adverse  report  of  any  committee  to 
strike  out  the  word  "  male."  It  is  only  brought  here,  as  I  say,  by 
this  weak  and  feeble  amendment  providing  for  leaving  it  to  the 
people  and  evading  our  duty.  I  say,  let  us  not  do  that.  It  will 
bring  discredit  upon  our  work.  It  will  not  only  hurt  us,  as  to  this 
very  matter,  but  as  to  all  other  matters  that  we  submit.  Why, 


August  14.]  CONSTITUTIONAL  CONVENTION.  417 

even  now  it  is  being  talked  of  all  through  the  State  of  New  York, 
lor  this  matter  was  discussed  here  last  week,  and  the  discussions 
have  gone  out  through  the  papers.  The  people  have  read  about 
it.  We  hear  these  irreverent  young  men  who  represent  the  public 
press  say:  "Why,  the  Convention  is  jollying  the  girls  now." 
I  mention  that  simply  as  showing  the  contempt  we  are  liable  to 
bring  upon  ourselves  by  doing  this  thing;  the  remarks  that  will  be 
made  in  regard  to  our  work.  I  say,  let  us  stand  up  like  men  and 
say  that  we  will  do  according  to  our  belief;  that  we  will  either  strike 
the  word  "  male  "  out  of  the  Constitution,  which  we  submit  to  the 
people  for  their  action,  or  else  we  will  not,  and  then  let  us  stand  by 
it  and  not  seek  to  evade  the  responsibility,  and  when  we  go  home 
the  suffragists  and  anti-suffragists,  alike,  our  wives  and  our 
mothers  and  our  sisters,  will  regard  us  with  more  honor  than  they 
will  if  we  do  this  thing  which  is  here  proposed,  for  all  men  and 
women  alike  do  never  honor  a  coward.  (Applause.) 

Mr.  Towns  —  Mr.  President,  a  painful  injury,  received  about  the 
time  this  amendment  was  reported  from  the  Committee  on  Suf- 
frage, has  caused  me,  much  against  my  will,  to  remain  the  passive 
friend  of  woman  and  the  inactive  foe  of  her  enemies,  until  to-night. 
I  had  not  intended  to  lift  up  my  voice  to  urge  at  your  hands  the 
dispensation  of  tardy  justice  to  her.  I  thought  the  question  was  so 
plain  that  even  he  who  ran  might  read.  But  the  courtesy  which 
you  have  shown  me,  you  of  this  Convention  who  seem  desirous  of 
urging,  with  lightning  speed,  this  most  momentous  question 
through  this  deliberate  body,  I  graciously  thank  you  for. 

I  am  proud,  Mr.  President,  to  stand  where  Plato  stood;  where 
the  friend  of  Kant,  Heppel,  stood;  where  Disraeli,  John  Stewart 
Mill,  Whittier,  Lincoln,  Chief  Justice  Chase  stood;  and  there  I  will 
forever  stand  until  all  the  Buckleys,  all  the  Matthew  Hales,  all  the 
Goldwin  Smiths,  and  even  our  worthy  Chairman,  find  some  argu- 
ments that  do  not  appeal  to  prejudices,  dusty  with  the  time  of 
ages;  but  attack  these  questions  coolly,  calmly,  and  with  the  logic 
that  knows  and  believes  that  justice  is  on  its  side. 

None  of  those  gentlemen,  the  great  controversalists  upon  this 
question,  has  found  time  and  words  to  refute  the  sad  truth  that  dis- 
graces this  great  commonwealth;  the  sad  truth,  I  say,  that  one-half 
of  its  population,  that  half  doing  more  than  half  of  the  labors  of  the 
day  and  enduring  all  its  sufferings,  that  half  of  our  glorious  popula- 
tion in  this  end  of  the  nineteenth  century,  is  put  upon  the  same 
base  strata  with  the  felon  and  the  idiot;  for  the  Constitution  guar- 
antees the  rights  of  participation  in  government  to  the  most  lowly, 
27 


418  REVISED   RECORD.  [Tuesday, 

the  most  unworthy,  the  most  weakly  equipped  for  the  service,  and 
only  denies  it  to  our  mothers,  our  sisters,  our  sweethearts  and  our 
wives.  None  of  the  mighty  controversalists  on  the  side  against 
female  suffrage  has  advanced,  sir,  any  argument  against  their 
right  to  vote,  save  those  contained  in  special  pleas  of  expediency 
and  appeals  to  the  passions,  our  passions  and  prejudices.  We  are 
told  by  Goldwin  Smith,  he  a  proselyte  from  the  divine  faith  of 
woman's  rights,  that  government  is  force,  and  that  woman, 
being  the  weaker  vessel,  could  never  participate  in  its 
administration,  for  she  could  not  enforce  the  decrees  of  State. 
There  might  be  something  in  this  argument  of  the  worthy  philoso- 
pher, the  embittered  man  who  writes  polemics  against  creeds  and 
beliefs,  who  would  drive  the  Hebrew  away  from  us,  and  everyone 
who  differs  from  him  and  his  particular  small  faith;  I  say,  there 
might  be  something  in  this  argument  of  his,  if  we  were  about  to 
abdicate  to  woman  all  the  functions  and  powers  of  our  governmental 
administration.  That  we  are  not  about  to  do,  sir;  though  we  might 
go  to  that  extent  without  great  injury  to  the  commonwealth  or  to 
ourselves.  While  woman  may  not  be  fitted  to  do  police  justice 
duty,  panoplied  with  the  protection  of  the  freeman's  ballot,  she 
would  be  able,  sir,  to  resist  becoming  the  enforced  tributary  of  a 
mercenary  police  and  a  dishonest  government.  She,  of  course,  can- 
not bear  arms.  She  was  made  to  bear  children,  to  bear  children 
that  the  word  of  God  and  that  this  country  might  live  upon  the 
face  of  the  earth.  But,  sir,  the  cause  of  right  and  justice  is  not 
won  by  the  gun  or  the  rifle,  and  it  is  not  by  the  resistance  of  serried 
legions  that  any  just  cause  ever  triumphed.  Take  away  from  it 
the  moral  support  of  the  mothers  and  daughters  of  the  land  for 
which  battle  was  waged,  and  that  country  has  gone  down  into 
defeat  and  into  oblivion,  in  the  history  of  ages. 

The  relation  of  the  sexual  differences  between  man  and  woman, 
sir,  has  nothing  to  do  with  the  right  of  voting.  Has  the  ballot 
ever  made  man  worse  or  more  depraved?  Ask  the  workingman  of 
England  who  lifted  him  from  the  slough  of  political  degradation, 
and  gave  to  him  the  first  certificate  that  he  ev.er  had  of  his  brother- 
hood with  man. 

But  Professor  Cope,  who  expounds  that  woman  and  man  are 
different  sexes,  and  that  the  peculiarities  of  women  unfit  them  for 
government,  urges  this  in  a  pamphlet  of  many  pages,  with  great 
casuistry  and  small  fairness  and  by  solemn  arguments.  But  pro- 
fessor, though  he  be,  emeritus  in  Latin  philology  and  philosophy, 
he  lives  outside  of  this  world  of  ours.  If  he  walks,  he  moves  with 
the  step  of  the  somnambulist,  the  dreamer;  for,  if  he  but  looked 


August  14.]  CONSTITUTIONAL  CONVENTION.  419 

around  him  in  this  world  of  ours,  he  would  see  that  woman  is  not 
only  qualified  to  administer,  to  govern  and  to  act,  but  that  she  does 
govern,  administer  and  act  in  nearly  every  function  of  life  and  gov- 
ernment in  America  and  throughout  the  civilized  world.  In  finance 
he  has,  perhaps,  never  heard  of  Hetty  Green,  or  Burdett  Coutts;  in 
philosophy,  of  Eliza  Gannon;  in  literature,  of  George  Eliot;  in 
medicine,  of  Mrs.  Mary  Putnam  Jacobi;  in  the  humanities,  of  Flor- 
ence Nightingale;  in  patriotism,  of  Barbara  Freitchie;  in  devotion, 
of  the  good  wife  of  Ulysses,  Penelope;  and  in  government,  that 
woman  who  has  put  the  button  upon  the  church  steeple  of  womanly 
perfection,  the  honored,  the  revered,  the  almost-worshiped  speci- 
men of  her  time,  Victoria,  Queen  of  England.  In  all  the  walks  of 
life  women  are  active,  discreet,  intelligent,  reflective.  Woman's 
labors  never  cease.  She  continues  from  sun  to  sun,  and  the  world,  I 
am  almost  moved  to  exclaim,  would  cease  to  revolve  in  its  firmament, 
were  the  activities  of  woman,  the  very  mainspring  of  humanity,  to 
cease  but  for  a  single  day.  Women  may  not  be  able  to  march 
as  far  as  men,  or  endure  the  physical  strain  of  the  stronger  sex,  nor 
have  they  now  to  do  so.  They  can  ride  on  bicycles,  whose  rolling 
feet  put  them  on  an  equality  of  locomotion  with  men.  (Applause 
and  laughter.)  Who  can  say  that  in  less  than  twenty  years  women, 
upon  bicycles  run  by  electricity,  and  mounted  with  motors  throwing 
death-dealing  projectiles  a  dozen  miles,  will  not  march  fearlessly 
into  battle  against  their  country's  foes  and  defeat  them.  Sir,  the 
reason  they  have  never  yet  done  military  duty  is  that  these  possi- 
bilities did  not  exist.  But  they  have  been  subjected,  sir,  at  the 
hands  of  man,  to  more  hazardous,  death-dealing,  destructive  and 
burdensome  occupations  than  the  firing  of  cannon  or  the  bayonet's 
point.  He  did  not  make  them  soldiers,  sir,  because  it  was  neces- 
sary to  leave  them  at  home  to  supply  the  thinned  ranks  of  the 
warriors;  to  feed  and  to  clothe  them,  to  nurse  them  and  to  admin- 
ister their  affairs,  when  they  were  doing  battle  or  robbing  a  sister 
country.  And  you  may  depend  upon  it,  sir,  in  spite  of  all  their 
boasted  chivalry  and  masculine  devotion,  that  when  the  time  comes 
for  woman  to  do  battle  upon  these  bicycles,  if  you  please,  chivalric 
man  will  hide  himself  behind  her  fluttering  petticoats  and  send  her 
to  the  front.  (Laughter.)  This  is  no  exaggeration. 

Her  first  issuance  into  history,  sir,  is  in  the  libelous  statement 
of  our  abject  progenitor  when  he  said  to  an  irate  deity:  "The 
woman  gave  me  the  apple  to  eat."  But  now  appears  upon  the 
scene  great  Matthew  Hale,  the  corporation  attorney,  special  pleader, 
learned  and  versed  in  the  sophistries  and  quibbles  of  the  law.  He  is 
a  veritable  Chinese  warrior  and  wages  against  women  vociferous 


420  REVISED   RECORD.  [Tuesday, 

flagellations  and  lifts  up  his  voice  in  dreadful  alarums.  His  weapon 
against  them,  like  that  of  the  pig-tailed  warriors  of  the  Celestial 
Empire,  is  the  tom-tom  and  the  stink-pot,  and  he  tries  to  demoral- 
ize our  judgment  and  obscure  the  situation  by  the  stench  and  noise 
of  his  wails  as  he  marches  into  battle  against  poor  woman  behind 
the  bedraggled  skirts  of  40,000  fallen  women  of  New  York,  who, 
he  claims,  would  revolutionize  history  and  subvert  the  government 
if  they  were  allowed  to  vote.  Why,  sir,  it  has  been  many  years  since 
the  Dutch  took  Holland;  and  this  gentleman,  who,  I  am  told,  lives 
in  this  old  Dutch  town  of  Albany,  seems  to  be  ignorant  of  the 
fact.  In  spite  of  his  alarums  the  ballot-box  would  be  just  as  pure 
as  it  is  now,  with  the  miserable  wretches  masquerading  as  men, 
supported  by  these  poor  creatures  from  whom  they  levy  tribute, 
voting,  governing  —  yea,  defying  us,  as  in  the  greatest  city  of  this 
State.  And  last  comes  that  worthy  divine,  Doctor  Buckley,  who 
kindly  sent,  through  Watson  Gilder,  advance  sheets  of  his  article 
against  women  to  the  worthy  chairman  of  the  Suffrage  Committee, 
and  says  "  Chivalry  " —  spell  it,  gentlemen  of  the  Convention,  with 
a  big  "  C  "-  -"  Chivalry,  with  its  refined  influence  would  pass  away 
from  the  face  of  the  earth,  if  the  shackles,  the  golden  shackles  of 
woman's  bondage,  were  stricken  from  her."  Chivalry,  the  name 
would  never  have  been  known  but  for  women.  What  sins  have 
been  committed  in  its  name?  The  name  never  would  have  been 
invented,  no,  never  mentioned  in  legend  or  lore  but  for  woman, 
whose  gentle  character,  whose  superior  intelligence,  whose  virtue, 
whose  patience,  whose  sublime  devotion  turned  the  Prankish  bar- 
barians, the  Anglo-Saxons  and  the  Normans  into  something  besides 
fighting  monsters,  civilized  them  and  endowed  them  with  feelings 
of  compassion,  and  mercy,  and  pity.  Again,  woman  regenerated 
man.  Again,  she  led  him  into  the  paths  of  perfection,  as  she  had 
done,  sir,  at  that  time  in  the  history  of  the  world  when  she  reigned 
supreme,  and  had  all  the  masculine  gender  at  her  feet.  The  very 
beards  that  we  wear,  and  I  say  this  upon  the  authority  of  Darwin; 
the  very  beards  that  we  wear,  the  gaudy  plumage  of  the  peacock, 
the  mane  of  the  roaring  lion,  are  but  the  excrescense  of  masculine 
excitement  endeavoring  to  please  the  female  to  whom  he  paid 
courtship.  Ancient  chivalry,  gentlemen,  with  its  minnesingers,  its 
troubadours,  its  jousts  and  its  tournaments,  has  long  since  passed 
away,  if  it  ever  existed,  save  in  the  imagination  of  the  poets  and  the 
bards.  If  the  act  of  suffrage  is  going  to  pvit  the  quietus  on  such 
chivalry  as  we  have  to-day,  on  such  chivalry  as  we  claim  we  have 
to-day,  on  such  as  the  Rev.  Dr.  Buckley  says  will  be  exterminated 
from  the  face  of  the  earth,  if  woman  is  allowed  the  privilege  of 


August  14.]  CONSTITUTIONAL  CONVENTION.  421 

depositing  a  piece  of  white  paper,  about  two  inches  by  four,  in  the 
ballot-box  once  a  year;  if  such  chivalry  as  we  have  in  these  last 
days  of  the  nineteenth  century,  if  woman  suffrage  is  going  to 
eradicate  the  hog  and  hominy  knights  of  the  South,  the  codfish 
knights-errant  of  the  East  and  the  buckwheat  nobility  of  the  West, 
I  say  let  it  come  and  let  it  come  to-night. 

Away  with  such  chivalry,  whose  principal  tenet  is  to  rise  with 
politeness  and  give  some  woman  a  seat,  and  who  the  next  moment 
wishes  to  mash  or  to  look  upon  with  lecherous  gaze.  Away 
with  the  chivalry  that  pampers  one  or  two  of  the  sex  and  rocks 
them  in  the  cradle  of  luxury,  while  with  tyrannical  heel  it  crushes 
the  life  out  of  the  millions  of  poor  suffering  wretches  who  have  to 
earn  their  daily  bread  by  the  sweat,  not  of  their  husband's  brows, 
but  of  their  own  sweet  brows. 

But,  says  Dr.  Buckley,  the  ballot  would  deteriorate  women  in 
their  moral  tone.  I  ask  that  worthy  man  of  God,  that  most  elo- 
quent preacher,  no  doubt,  though  I  never  yet  heard  his  dispensation 
of  the  word  how  to  reach  eternal  life,  I  ask  that  worthy  divine, 
who  preaches,  no  doubt,  to  plush  cushions  on  the  Sabbath  and 
moves  on  the  inner  or  outer  crust  of  the  400,  which  is  the  most 
destructive  to  the  moral  tone  of  men  and  women,  the  emotions, 
struggles  and  intrigues  of  the  so-called  leaders  of  society,  the  low- 
necked  and  short-sleeved  dame  sipping  champagne  at  post-prandial 
functions  with  the  dandy  and  blase  statesman,  listening  to  his  com- 
pliments and  equivocal  bon  mots  until  her  very  senses  reel  with 
excitement,  or  the  modest  mother  and  sister  who  goes  to  the  ballot- 
box  on  election  day  and  deposits  the  freeman's  weapon  in  the 
cause  of  her  country?  No,  reverend  sir,  if  the  debacle  of  society 
conies,  it  will  come  from  the  direction  where  lascivious  music  sounds 
its  pleading  tone,  where  highly-seasoned  food,  terpsichorean  occu- 
pations, French  manners  and  fashions  ruin  and  corrupt  the  female's 
gentle  heart,  not  from  the  loom,  the  working-benches,  the  country 
home,  the  hut  or  the  hovel.  Sir,  the  women  of  the  middle  age 
who  inspired  the  twang  of  the  troubadour's  guitar  and  taught  the 
modest  bard  to  sing,  have  perished  from  the  face  of  the  earth. 
Woman  lives  to-day  under  another  dispensation.  To-day  it  is  the 
song  of  the  shirt;  it  is  the  crack  of  the  task-master's  lash;  and  I 
ask  you,  gentlemen,  who  have  been  trying  to  rush  this  momentous 
question  through  this  Convention,  I  ask  you,  sirs,  Democrats  and 
Republicans,  I  ask  you,  in  the  name  of  justice,  I  ask  you  in  the 
name  of  Him  who  witnesses  the  fall  of  the  smallest  sparrow,  I  ask 
you  in  the  name  of  that  chivalry  which  Dr.  Buckley  has  conjured 
up,  if  there  is  manhood  enough,  if  there  is  chivalry  enough,  in  this 


422  REVISED   RECORD.  [Tuesday, 

body  of  170  wise  men  of  the  State  of  New  York,  like  the  noble 
knights  of  old,  to  go  down  into  the  cave,  not  of  the  wicked  dragon, 
but  into  the  caves  of  the  industrial  and  political  dragon  and  pull 
up  woman,  fair  woman,  pull  her  up  from  her  darkness  and  degrada- 
tion, and  make  her  free.  (Applause.) 

Mr.  Chairman,  I  well  remember  that  day  in  June;  it  was  the  first 
time  that  I  came  to  regard  you  with  seriousness;  to  study  those 
perfections  of  feature  and  intellect  with  which  our  common  God 
has  endowed  you.  I  saw,  sir,  you  sitting  there  in  the  center  of  that 
symposium  of  intellect,  of  virtue,  of  motherhood,  of  this  great  State, 
and  it  seemed  to  inspire  me,  to  inspire  me  with  hopes,  which,  if 
rumor  is  true,  will  be  dashed  to  the  ground.  But  there,  sir,  never- 
theless, you  sat  — 

Jove  like,  exquisite,  debonair, 

You  heard  with  languid,  lordly  air, 

Brave  women  make  their  piteous  plea, 
I  saw  the  touch  of  pity  trace 
Compassion  on  your  noble  face, 

And  hoped  that  woman  should  be  free. 
But  when  you  spoke  to  El-i-hu, 
My  hopes  took  on  a  darker  hue. 

For  El-i-hu,  though  he  a  sage  is, 
Prejudice,  dusty  dust  of  ages, 

Had  hardened  him  at  head  and  heart, 
He  has  not  heard  their  piteous  pleading, 
Nor  seen  their  wounds  from  shackles  bleeding, 

In  a  lifetime  spent  in  slavery's  mart. 

So  up  he  spoke,  the  mighty  leader, 
Wily  lawyer,  special  pleader; 

"  Oh,  chief,  close  up  your  ears  and  eyes, 
We  must  not  for  a  single  hour, 
Divide  with  them  our  supreme  power, 

Nor  give  up  aught  of  the  franchise. 

"  Why,  sir,  it  would  kill  this  Constitution, 
And  all  the  problems  whose  solution 

Have  cost  me  sleepless  nights  and  days, 
With  petticoats  before  the  people, 
Fluttering  from  platform,  stump  and  steeple. 

Would  not  be  in  it  with  skirts  and  stays. 


August  14.]  CONSTITUTIONAL  CONVENTION.  423 

"  The  article  ju-di-ci-ary, 
Creating  courts  unnecessary, 

To  help  us  lawyers  to  our  fee 
Would  go  into  the  paper  basket, 
If  the  voter's  sweetheart  asked  it, 

And  called  on  him  to  make  her  free. 

"  There'll  be  no  time  to  set  up  school, 
To  teach  the  ideas  of  home  rule 

Set  forth  in  Jesse  Johnson's  scheme, 
And  even  the  labors  of  Louis  Marshall, 
For  the  judges  to  whom  he  is  partial, 
Would  be  an  iridescent  dream. 

"  And  eke,  sir,  the  apportionment, 
By  which  the  Democrats  are  sent 

To  Coventry  for  years,  I  claim,  • 
Would  be  forgotten  in  the  scuffle, 
And  lost  forever  in  the  shuffle, 
If  woman's  playing  in  the  game. 

"  You,  sir,  and  I  must  give  to  party, 
Not  to  mankind,  our  efforts  hearty. 

Disfranchised,  woman  must  remain, 
T'would  mean  for  us  '  the  debacle ' 
If  we  struck  off  a  single  shackle, 
Linked  in  her  bondage's  golden  chain. 

"  Put  Cochran  in  his  regimentals, 
To  terrorize  the  sentimentals, 

Get  Gilder  to  help  Goodelle  out, 
Let  swing  and  crack  the  party  lashes, 
Let  party  thunder  roll  its  chases, 
Till  every  female's  put  to  rout. 

"  Turn  loose  the  jammers  of  dry  rot, 
Declaim  against  the  female  ballot, 

Fill  every  heart  with  dreadful  fears, 
Regard  not  justice,  mercy,  pity, 
Kill  the  measure  in  committee, 

And  woman's  slaved  for  twenty  years." 

This  question,  in  all  earnestness,  Mr.  Chairman,  has  been  urged 
with  undue  haste  in  this  Convention,  rushed  through  the  Com- 
mittee on  Suffrage  upon  outside  pressure  and  influence,  precipitated 


424  REVISED  RECORD.  [Tuesday, 

upon  our  councils  and  driven  through  this  deliberative  assembly 
with  great  haste.  There  has  been  a  well-organized  cabal,  in  which, 
I  am  sorry  to  say,  one  of  my  colleagues  from  the  Second  District 
has  been  conspicuous,  not  in  his  regimentals,  with  the  decoration 
of  the  valiant  Thirteenth  Regiment  corruscating  upon  his  manly 
bosom,  but  in  civilian  attire,  this  son  of  Mars,  or,  perhaps,  in  defer- 
ence to  the  ladies,  I  ought  to  say  this  son  of  mamma's,  who  never 
smelled  powder,  save  upon  his  lady's  cheek,  has  acted  as  scout  and 
picket  for  the  enemy.  He  has  been  the  most  ubiquitous,  cantanker- 
ous, agitating  perambulator  and  perambulating  agitator  this  con- 
troversy has  produced. 

The  chairman,  God  bless  his  gentle  soul,  has  sought  to  scuttle 
this  beautiful  ship  in  a  milder  way,  but  not  less  effectually. 
He  has  appeared  to  me  like  one  in  a  dream,  battling  for  a  cause 
from  the  justice  of  which  his  conscience  told  him  he  was  many 
miles -away.  Why,  sii,  do  you  know,  I  have  met  him  in  the  corri- 
dors of  this  Capitol  with  a  misty  sheen  upon  his  countenance, 
muttering  prejudices  against  the  logic  of  the  situation  and  creating 
witty  apothegms  to  combat  the  arguments  of  poor  woman.  And, 
feeling,  like  Hamlet,  I  thought  that  I  would  approach  this  Polonius, 
and  I  addressed  him  in  the  language  of  Shakespeare;  I  said  to  him: 
"  Good  morrow,  worthy  sir,  how  goes  it  with  fair  woman  to-day?  " 
It  seemed  to  stun  him.  He  deigned  no  reply,  but  addressed  me  in 
language  which  my  stenographer  took  down;  I  did  not  understand 
it:  "Adam  per  Eva  deceptus  est,  non  Eva  per  Adam"  "Why,"  I 
said  to  him,  "  pray,  address  me  in  the  language  of  my  country,  in 
United  States;  what  mean  you,  sir?"  "Why,"  he  said,  "I  have 
just  heard  it;  have  you  heard  it?  "  "  What  is  it?  "  says  I.  "  Why," 
he  says,  "  I  have  just  heard;  howl  pity  poor  father  Adam;  I  have 
just  heard  that  Adam,  when  from  his  grassy  couch  he  rose,  learned 
that  his  first  sleep  was  his  last  repose."  (Laughter.) 

The  gentleman  was  so  pregnant  with  this  vast  subject,  that, 
armed  with  the  advance  sheets  of  Dr.  Buckley's  polemic  against 
women,  he  sought  the  secluded  fastnesses  of  the  Adirondacks  to 
quiet  his  nerves  and  compose  that  speech  of  forty-six  hundred 
words,  which  will  go  tingling  upon  the  clapper  of  the  bells  of  time 
until  their  brassy  tongues  melt  with  the  heat  of  this  discussion. 
There,  sir,  mid  the  vast  solitudes  of  lake  and  mountain,  undisturbed 
by  any  sound,  save  the  discordant  screech  of  the  weary  and  lonely 
loon,  or  the  wail  of  whang-doodle  mourning  the  loss  of  her  first 
born,  this  great  production  of  the  chairman  of  the  Committee  on 
Suffrage,  whose  chivalry  has  caused  him  to  deny  what  never  yet,  in 
the  history  of  the  ages,  has  been  denied  to  women,  the  right  of 


August  14.]  CONSTITUTIONAL  CONVENTION.  425 

having  the  last  word  in  a  discussion  (laughter),  was  conceived,  and 
will  be  delivered  here  to-night  under  the  midwifery  of  Messrs. 
Cochran,  Cookinham  and  others.  You  are,  I  know,  gentlemen, 
impatient  for  the  sacrifice.  But  before  I  close  let  me  warn  you, 
let  me  remind  you,  gentlemen,  of  the  fate  of  that  assinine  quadruped 
who  once  adorned  himself  with  the  skin  of  the  king  of  beasts. 
Let  me  tell  you,  gentlemen,  you  who  are  going  to  vote  against 
this  question,  that  you  need  not  lay  the  flattering  unction  to  your 
souls  that  you  are  of  the  race  of  those  who  held  the  pass  at  Ther- 
mopolae,  that  you  are  the  Casabiancas  of  this  misled  Convention,  or 
that  you  are,  perchance,  of  the  blood  of  him  who  held  the  bridge 
at  Rome.  No,  gentlemen,  you  who  are  seeking  to  stem  this  tide  are 
the  long-lost  brothers  of  Mr.  Ike  Partington,  the  posthumous  pro- 
geny of  that  old  woman  who  sought  to  sweep  back  the  waves  of 
the  Atlantic  ocean  with  a  broom,  and  you  are  engaged  in  just  as 
unprofitable  a  task.  This  question  has  come  to  stay.  Chase  her 
out  with  a  pitchfork,  she  will  come  again.  Gentlemen,  I  wish  you 
joy  in  the  occupation;  and  you,  Mr.  Chairman,  the  embodiment  of 
grace,  the  mold  of  fashion  and  the  perfection  of  form,  in  the  words 
of  the  Roman  gladiator,  I  exclaim :  "  Ave  imperator  morituri  tc 
salutant."  (Applause  and  laughter.) 

Mr/  Cookinham  —  Mr.  President  and  gentlemen  of  this  Conven- 
tion, I  do  not  rise  to-night  to  talk  to  the  gallery.  I  do  not  rise  to 
address  you  as  a  criminal  lawyer  addresses  a  jury,  when  he  has 
neither  law  nor  fact  upon  his  side.  I  will  address  you  for  a 
very  few  moments  in  the  line  of  common  sense,  in  the  line  of  logic, 
in  a  line  that  will,  I  believe,  aid  you,  fellow-delegates,  to  do  your 
duty  to-night.  I  shall  first  address  myself  to  the  gentleman  who 
opened  this  debate.  It  was  put  into  his  mind  somehow,  I  do  not 
know  hpw,  to  state  in  the  Convention  that  this  committee  was 
made  up  unfairly  to  the  women.  I  say  to  you,  fellow-delegates,  I 
open  to  you  no  seventh  seal  when  I  say  it  is  the  only  committee 
named  by  the  President  of  this  Convention  upon  which  delegates 
were  placed  because  it  was  known  what  their  votes  would  be  when 
they  came  to  pass  upon  any  question.  Four  members  were  put 
upon  that  committee  that  they  might  vote  in  favor  of  woman  suf- 
frage. 1  ask  you,  suppose  the  New  York  Central  Railroad  had 
asked  to  name  four  members  of  a  committee,  would  these  halls 
have  held  the  chorus  of  condemnation  that  would  have  been  poured 
upon  such  a  proceeding?  The  proposition  would  not  have  been 
thought  of  for  one  moment.  The  gentleman  saw  fit  to  criticise  the 
action  of  the  committee.  I  say  again,  that  I  am  opening  no  seventh 
seal  when  I  say  to  von  that  no  one  on  that  committee,  and  no 


426  REVISED  RECORD.  [Tuesday, 

interest  passed  upon  by  that  committee,  received  a  thousandth  part 
of  the  consideration  that  was  accorded  to  the  gentleman  who  opened 
this  debate  and  to  the  question  which  he  champions.  I  say,  more- 
over, that  he  has  charged  some  persons  with  being  sharp  par- 
liamentarians. I  do  not  know  to  whom  he  refers,  but  I  do  know 
that  the  four  gentlemen  upon  that  committee  who  favor  woman 
suffrage  were  asked  to  present  this  question  in  any  form  they  saw 
fit,  in  the  form  in  which  it  would  command  the  greatest  number 
of  votes,  and  we  would  report  it  in  that  form  to  this  Convention. 
I  say  to  you,  Mr.  President  and  gentlemen,  that  every  amendment 
reported  adversely  to  this  Convention  was  reported,  with  the  excep- 
tion of  one  vote,  and,  excepting  this  amendment,  by  the  unanimous 
vote  of  the  Suffrage  Committee.  I  do  not  betray  the  secrets  of  the 
committee  room  when  I  say  the  gentleman  who  opened  the  debate 
voted  with  the  majority.  I  do  not  detray  the  secrets  of  the  com- 
mittee room,  because  it  is  no  secret  in  this  Convention,  that  the 
gentleman  who  last  addressed  the  Convention,  Mr.  Towns,  also  was 
present  and  voted  in  the  same  manner.  I  desire  to  know  when 
the  change  of  heart  took  place  in  the  last  gentleman  who  addressed 
the  Convention?  When  the  Convention  assembled  and  he  sat  in 
counsel  with  us,  his  heart  was  right.  He  was  with  the  majority  of 
the  committee.  But  I  noticed,  not  long  afterwards,  that  upon  a 
certain  seat  in  this  Convention,  upon  that  side,  there  appeared  every 
morning  a  beautiful  bouquet,  and  I  have  never  been  able  to  ascer- 
tain whether  it  was  the  arguments  of  the  ladies  or  the  bouquets  that 
changed  his  heart. 

Now,  Mr.  President,  I  did  not  rise  to  make  a  speech.  The  chair- 
man of  the  committee  will  do  all  there  is  in  that  direction.  But  I 
do  rise  to  present  the  case  as  viewed  by  the  committee.  We  have 
heard  very  many  speeches.  We  have  heard  them  from  men  and 
from  women.  Speakers  have  come  before  us,  as  they  have  before 
this  Convention,  and  have  stated  that  five  or  six  hundred  thousand 
separate  petitioners,  men  and  women,  desired  that  this  proposed 
amendment  should  be  submitted  to  the  people.  Their  arguments 
are  founded  very  largely  upon  that  proposition.  If  that  is  true, 
it  is  entitled  to  some  consideration ;  if  it  is  not  true,  if  this  number  is 
grossly  exaggerated,  if  it  is  magnified  to  an  extent  to  make  it  abso- 
lutely ridiculous,  then  it  is  not  entitled  to  credit.  I  have  in  my 
hand  a  part  of  this  so-called  great  petition.  There  it  is.  It  con- 
sists of  three  or  four  pages.  There  are  five  or  six  names  upon  it. 
And  yet,  fellow-delegates,  you  who  are  wavering  as  to  how  you 
shall  vote  on  this  question,  I  ask  you  to  consider  what  I  say.  That 
paper  (exhibiting  paper)  is  said  to  represent  211,396  of  these  peti- 


August  14.]  CONSTITUTIONAL  CONVENTION.  427 

tioners.  You  have  been  led  to  believe  that  the  names  of  600,000 
petitioners,  or,  as  the  gentleman  from  New  York  gave  it  to  you 
to-night,  626,627,  men  and  women,  had  asked  to  have  the  proposed 
amendment  submitted  to  the  people.  Is  that  true?  I  say  that  you 
are  obliged  to  strike  off  211,396  names,  because  they  are  presented 
solely  by  the  president  and  secretary  of  certain  organizations  put- 
ting their  names  to  the  petition.  Again,  we  are  told  that  50,000 
voters,  or  voters  and  those  who  would  like  to  be  voters,  women, 
have  petitioned,  on  behalf  of  the  State  Grange.  I  do  not  know 
how  they  got  the  exact  number  of  50,000,  but,  Mr.  President  and 
gentlemen,  that  (exhibiting  paper)  is  the  only  paper  before  this 
committee  or  before  this  Convention.  Upon  that  paper  you  are 
asked  to  give  credit  to  the  request  of  50,000  men  and  women. 
That  is  a  paper  sent  out  by  one  person.  His  name  is  Goff,  and  he 
signs  himself  as  secretary  of  a  little  meeting  held  in  my  own  city, 
where  were  assembled  a  few  farmers;  I  say  a  few  farmers,  and, 
perhaps,  fifty  or  sixty  people  present,  all  told.  They  assembled 
in  the  city  of  Utica  in  a  small  hall  and  passed  a  resolution  upon 
the  subject.  We  are  now  asked  to  consider  that  paper  as  repre- 
senting the  petition  of  50,000  men  and  women.  That  is  the  only 
paper  which  they  present  to  the  committee  or  to  this  Convention. 
That  disposes  of  261,000  of  their  petitioners.  But  I  am  not  quite 
through  with  these  petitions;  and,  fellow-delegates,  listen  to  what 
I  say  and  then  see  if  this  petition  that  has  been  trumpeted  through 
the  State  as  representing  600,000  men  and  women  is  worthy  of  the 
consideration  that  the  two  gentlemen,  with  extended  arms  and 
vociferous  utterances,  declared  to  you  it  was  entitled  to  receive. 
I  hold  in  my  hand  the  petitions  from  Oneida  county,  which  I  repre- 
sent. I  may  say,  I  do  not  claim  for  my  constituents  that  which  I 
have  no  right  to  claim  when  I  say  that  for  intellectuality,  for  culture, 
for  education  and  morality,  no  county  stands  above  her.  That  as 
a  home  of  statesmen,  lawyers,  doctors,  ministers  and  teachers,  there 
is  no  county  which  stands  above  the  one  which  I  represent.  And 
yet  I  hold  in  my  hand  all  the  petitions  from  that  great  county. 
I  heard  upon  a  certain  occasion  one  of  the  foremost  champions  of 
this  cause  address  a  meeting  in  my  own  city.  I  heard  her  say  that 
they  would  go  into  every  city,  town  and  hamlet,  no  matter  how 
insignificant,  and  they  would  produce  petitions  to  be  presented  to 
this  Convention,  and  that  they  expected  from  that  county  alone 
to  present  here  petitions  signed  by  30,000  men  and  women.  It  is 
true  that  the  petitions  were  circulated  in  every  town,  in  every  ham- 
let in  every  quarter  of  the  county;  and,  behold  the  result!  In  the 
county  there  have  been  obtained  the  signatures  of  1,043  women  and 


428  •      REVISED   RECORD.  [Tuesday, 

of  582  men;  total,  1,625;  whereas,  the  vote  in  this  county  is  more 
than  30,000.  Now,  Mr.  President,  that  is  not  all.  I  find,  in  taking 
up  the  first  book,  that  these  names  do  not  appear  once  only,  but 
they  appear  twice,  and,  in  some  instances,  they  appear  three  times. 
On  the  very  first  page  the  name  of  one  person  appears  twice,  and 
upon  the  very  next  page  it  appears  the  third  time.  It  chances  to 
be  a  minister  of  the  Gospel.  Now,  Mr.  President,  he  did  not,  in 
my  opinion,  sign  that'  name  three  times,  and  yet  somebody  did. 
I  find  also  page  after  page  in  these  books  in  the  same  handwriting, 
and  no  explanation  of  it.  1  call  attention  to  these  matters  and 
what  is  true  in  this  case,  I  say  is  characteristic  of  all  the  petitions. 
I  have  examined  them  very  carefully.  That  is  not  all.  I  turn  to 
the  figures  and  I  find  that  it  is  said  that  171,000  women  and  119,000 
men  have  petitioned.  I  turn  now  to  the  Woman's  Christian  Tem- 
perance Union  petitions.  They  present  here,  as  they  say,  a  petition 
a  half  a  mile  in  length.  I  examined  that  petition.  I  have  taken 
the  general  petitions  from  the  towns  in  my  county  and  have  laid 
them  side  by  side  with  this  petition  of  the  Woman's  Christian  Tem- 
perance Union,  and  I  find  that  the  same  names  appear  on  both 
petitions.  I  do  not  mean  that  they  are  absolutely  identical,  but  I 
find  that  there  for  the  fourth  time  many  of  those  names  appear. 
Now,  fellow-delegates,  you  who  believe  that  there  has  been  a 
representative  body  of  men  and  women  of  five  or  six  hundred  thou- 
sand in  number  asking  you  to  vote  to  submit  this  question  to  the 
people,  remember  that  the  statement  is  not  true.  There  are  not  to 
exceed,  in  my  opinion,  from  the  best  figures  that  I  am  capable  of 
making,  200,000  subscribers,  men,  women  and  children.  When 
you  consider  that  every  city,  ward,  township,  village  and  hamlet  in 
the  State  of  New  York  has  been  canvassed  upon  this  subject,  and 
no  more  petitioners  than  this  is  obtained,  am  I  not  right  when  I 
say  it  is  a  lamentable  failure  and  that  it  is  great  assumption  for 
them  to  come  here  and  say  that  the  women  or  men  of  this  State 
ask  for  woman  suffrage?  Why  do  we  speak  against  it?  I  have 
not  constituted  the  gentleman  from  New  York  (Mr.  Lauterbach) 
or  the  gentleman  from  Brooklyn  (Mr.. Towns)  to  speak  for  me  as  a 
champion  of  woman.  I  deny  their  right  to  stand  upon  this  floor 
and  say  that  they  represent  woman.  No,  sir ;  it  is  not  the  minority 
of  this  committee  that  represent  woman.  It  is  the  majority  of  this 
committee.  (Applause.)  The  gentleman  from  New  York 
(Mr.  Lauterbach)  or  the  gentleman  from  Brooklyn  (Mr.  Towns) 
may  weave  a  crown  ever  so  beautiful,  they  may  emblazon  it  as  they 
choose,  and  they  will  find  the  majority  of  this  committee  will  gladly 
place  it  upon  the  brow  of  woman;  but,  fellow-delegates,  we  are 


August  14.]  CONSTITUTIONAL  CONVENTION.  429 

not  here  to  champion  the  cause  of  woman.  That  is  right  in  its 
place,  but  it  has  no  place  here.  The  solemn  duty  imposed  upon 
every  gentleman  who  has  taken  an  oath  in  this  body,  is  not  to 
champion  the  cause  of  a  few  women.  It  is  to  vote  according  to 
his  judgment  for  the  interests  of  the  State,  and  nothing  more. 
The  arguments,  so-called,  of  those  who  champion  the  woman  suf- 
frage amendment  — 

Air.  Lauterbach  —  Will  you  permit  me  a  question?  You  say  that 
you  are  arguing  for  the  State;  kindly  tell  us  who  is  the  State? 
(Applause.) 

Mr.  Cookinham  —  I  will  be  very  glad  to  answer  the  question  of 
the  gentleman  from  New  York.  He  has  always  been  courteous 
in  our  committee,  always  courteous  upon  this  floor.  I  will  be  very 
glad  to  answer  him.  The  State  is  a  corporation.  It  is  made  up 
of  men,  women,  boys  and  girls.  The  living  part  of  it.  I  speak 
for  the  whole  of  them.  The  gentleman  from  New  York  speaks 
for  200,000  of  them.  The  State  demands  something.  The  State 
demands  that  we  should  guard  its  interests,  not  alone  the  interest  of 
woman,  but  the  interest  of  men,  women  and  children  alike.  I  have 
heard  every  speech  made  in  the  committee  and  out  of  the  com- 
mittee on  this  subject.  I  have  heard  not  one  single  argument  — 
I  have  not  heard  the  question  mentioned  —  that  it  would  be  for 
the  best  interests  of  the  State  that  women  should  vote.  Every 
speaker  in  the  committee  and  out  of  the  committee  has  appealed 
absolutely  and  entirely  to  men  in  a  manner  to  excite  their  sympa- 
thies for  woman.  Not  one  of  them  has  mentioned  the  subject  of 
what  the  interest  of  the  State  demanded.  If  it  were  not  for  the 
lateness  of  the  hour  I  would  be  very  glad  to  talk  upon  the  subject. 
(Voices :  "  Go  on.") 

I  would  be  very  glad  to  talk  on  that  branch  of  the  subject,  but, 
as  there  are  two  or  three  speakers  to  follow  me,  I  must  forbear. 
I  will  state  this,  that  I  expected,  when  I  was  elected  to  this  body, 
to  vote  to  submit  this  constitutional  amendment  to  the  people. 
My  mind  was  changed  by  the  arguments  of  the  suffragists  them- 
selves. A  prominent  member  of  this  committee  came  to  this  Con- 
vention with  a  fixed  opinion  that  he  would  vote  to  submit  it  to  the 
people.  He  has  changed  his  mind  in  consequence  of  the  character 
of  the  arguments  of  the  suffragists  themselves.  I  fail  to  see  any 
force  in  the  argument  that  has  been  made  in  their  behalf  when  I 
consider  that  I  was  called  upon  to  exercise  judgment  as  to  the  pro- 
priety of  submitting  this  amendment  to  the  people.  They  start 
from  a  different  standpoint;  their  aim  is  different  from  ours,  and 


43o  REVISED   RECORD.  [Tuesday, 

they,  therefore,  reach  a  different  conclusion.  Their  aim  is  different 
from  ours.  They  appeal  to  our  sympathies  only.  They  remind 
me  of  an  affidavit  drawn  by  a  person  in  our  city  for  the  arrest  of 
a  woman,  a  large  property  owner.  A  tenant  has  been  evicted  from 
one  of  her  houses  and  she  had  threatened  to  shoot  him.  He 
appeared  at  the  justice's  office  and  drew  his  own  affidavit  for  her 
arrest.  The  affidavit  ran  as  follows:  "  Whereupon  the  said  Eliza- 
beth Bradstreet  took  a  double-barreled  shot  gun,  loaded  with 
powder  and  shot,  aimed  it  at  the  deponent's  stomach,  and  swore 
she  would  blow  deponent's  brains  out."  (Laughter.)  Now,  fel- 
low-delegates, that  illustrates  the  manner  of  those  who  speak  for 
woman  suffrage.  They  start  with  what  woman  wants.  Then  they 
say  she  pays  taxes,  that  she  is  intelligent  and  moral.  We  simply 
file  a  demurrer.  Their  statement  of  facts  is  all  true,  but  it  has 
nothing  to  do  with  suffrage.  If  I  were  to  discuss  this  question 
on  its  merits,  I  should  say  that  there  are  but  two  propositions  to  be 
considered.  First,  would  it  be  for  the  benefit  of  the  State  to  confer 
the  right  of  suffrage;  second,  would  it  be  detrimental  to  woman? 
The  first  proposition  has  never  been  argued  before  the  committee 
or  before  this  Convention;  and  that  is,  in  my  opinion,  the  sum  and 
substance  of  the  whole  thing.  For  that  reason,  those  who  hold  to 
the  views  that  we  hold  to  have  said  but  very  little  upon  the  subject 
in  this  Convention.  We  may  say  to  the  other  side  that  you  do 
not  make  out  your  case.  We  demur  to  your  pleading.  I  am  one  of 
those  who  would  like  to  believe  upon  this  question  as  I  would  like 
to  believe  upon  the  subject  of  capital  punishment.  When  I  heard 
the  eloquent  gentleman  from  New  York  (Mr.  Blake)  discuss  that 
subject  I  sat  near  him.  I  longed  to  be  convinced  that  he  was  right 
in  advocating  that  the  death  penalty  be  abolished,  but  could  not  be. 
When  I  heard  the  gentleman  from  New  York  (Mr.  Lauterbach) 
deliver  his  speech  the  other  evening  no  one  enjoyed  it  more  than 
I,  but  I  could  not  be  convinced.  I  believe  that  we  would  entail 
upon  the  State  and  upon  woman  an  untold  injury,  should  we  confer 
upon  them  the  right  of  suffrage.  I,  therefore,  believe  it  is  illogical 
and  unreasonable  to  say  that  we  shall  vote  to  submit  to  the  people 
an  amendment  that,  in  our  judgment,  should  not  be  adopted.  The 
gentleman  from  Brooklyn  (Mr.  Powell)  tried  the  other  evening  to 
draw  a  distinction  between  amendments.  I  fail  to  see  any.  There 
are  but  two  ways,  under  the  Constitution,  that  amendments  can 
be  submitted  to  the  people.  One  is  by  their  passage  through  the 
Legislature  in  different  years;  the  other  is  that  this  Convention 
shall  approve  them,  recommend  them  and  submit  them  to  the  peo- 
ple. There  is  no  third  way.  No  matter  with  what  reservation  you 


August  14.]  CONSTITUTIONAL  CONVENTION.  431 

vote,  when  this  amendment  or  any  other  comes  before  the  Con- 
vention upon  the  third  reading,  you  are  to  vote  then  in  favor  of  or 
against  the  amendment. 

.Mr.  Maybee —  May  I  ask  the  gentleman  a  question?  \\~as  not 
precisely  that  thing  done  in  Oregon? 

Mr.  Cookinham  —  A  great  many  things  have  been  done  in  Ore- 
gon; I  am  talking  about  the  State  of  New  York.  The  State  of 
Oregon  is  not  acting  under  our  Constitution.  Our  Constitution 
provides  two  ways  of  submitting  an  amendment  and  but  two;  and 
this  is  neither  of  them. 

Now,  Mr.  President,  I  do  not  propose  to  detain  this  Convention 
longer.  I  simply  desire  to  say  this:  It  has  been  circulated  about 
this  chamber  that  someone  would  vote  against  the  report  of  the 
committee;  solely  that  the  amendment  might  go  into  the  Committee 
of  the  Whole.  It  has  been  hinted  that  someone  would  vote  for  it 
simply  to  satisfy  the  request  of  somebody  else.  Is  that  acting  up 
to  the  duty  imposed  upon  us  when  we  took  the  oath  of  office? 
Are  we  to  trifle  with  our  votes  in  that  way?  I  say  that  the  report 
of  this  committee  comes  before  you  and  you  are  asked  to  say 
whether  or  not  an  amendment  shall  be  submitted  to  the  people 
allowing  women  to  vote.  We  conscientiously  believe,  as  I  have 
no  doubt  a  majority  of  those  present  believe,  that  it  would  be 
detrimental  to  the  State  to  allow  such  submission.  (Applause.) 

Mr.  Kellogg  —  Mr.  President,  I  am  glad,  sir,  that  the  discus- 
sion upon  this  question  has  been  thus  far  conducted  with  candor 
and  fairness  and  in  a  spirit  of  lofty  patriotism.  It  is,  indeed,  with 
great  reluctance  that  I  rise  to  speak  upon  the  question  under  con- 
sideration. That  I  do  so  is  not,  in  the  slightest  degree,  for  any 
personal  gratification  of  my  own,  but,  sir,  I  feel  compelled  to 
respond  to  what  I  believe  to  be  the  overwhelming  sentiment  of  the 
great  constituency  which  I  have  the  honor  to  here  represent,  and 
oppose,  with  my  voice  and  vote,  not  only  woman  suffrage  as  a 
principle,  but  likewise  its  submission  to  the  people  of  this  State. 
In  arriving  at  the  conclusion,  after  conscientious  and  mature 
deliberation,  to  vote  to  sustain  the  report  of  the  able  committee 
which  has  so  patiently  and  impartially  considered  this  question,  I 
have  not  considered  it,  sir,  from  its  sentimental  policy  or  partisan 
standpoint;  neither  have  I  wavered  in  my  convictions,  because  it 
has  been  stated  that  the  party  in  the  majority  is  the  great  party  of 
Lincoln,  Seward,  Grant  or  Garfield  or  because  it  is  the  party  of  free 
men,  free  thought,  free  speech,  of  equal  rights  and  human  liberty. 
I  have  rather  kept  in  view  the  solemn  oath  which  I  took  upon 


432  REVISED   RECORD.  [Tuesday, 

myself  the  opening  day  of  this  Convention,  in  the  fear  of  Almighty 
God,  according  to  the  best  of  my  ability,  to  discharge  the  great 
trust  confided  to  my  care  as  should  best  subserve  the  interests  of  the 
people  of  the  great  State  of  New  York.  Instead  of  shirking  the 
responsibility  of  my  oath  and  of  my  duty  to  the  State,  as  I  under- 
stand it,  I  assume  it. 

We  have  heard  so  much  during  this  discussion  of  the  submis- 
sion of  the  question  of  woman  suffrage  to  the  vote  of  the  common 
people,  to  the  decision  of  the  sovereign  people,  in  obedience  to  the 
petition  of  a  small  minority  of  the  inhabitants  of  the  State,  though 
three  or  four  hundred  thousand  in  number,  it  be,  that  I  deem  it  my 
duty  to  refer  to  it.  Who  are  the  common  people?  Who  are  the 
sovereign  people?  Where  in  our  State,  under  the  grandeur  and 
glory  of  American  institutions,  does  anyone  reside  who  is  not 
common  and  sovereign?  He  who  advances  such  argument,  it 
seems  to  me,  sir,  builds  a  man  of  straw  for  the  purpose  of  knocking 
him  down  to  amuse  himself. 

What  becomes,  I  ask,  of  the  protest  of  the  hundreds  of  thousands 
of  the  virtuous  and  intelligent  mothers,  wives  and  daughters,  which 
has  come  up  to  us  from  every  portion  of  our  great  commonwealth  ? 
Before  you  drag  them  down  into  the  dirty  slough  of  politics  or  put 
them  in  jeopardy  of  having  to  assume  the  responsibility  of  citizen- 
ship, are  they  not  to  be  considered?  Are  they  not  also  the  commo.n 
and  sovereign  people?  What  do  you  say  to  the  opposition  of  more 
than  a  million  of  our  fathers  and  sons,  all  of  whom,  as  you  and  I 
know,  .are  unalterably  opposed  to  the  invasion  of  the  sanctity  and 
purity  of  their  homes  and  firesides  by  the  discordant  elements  of 
politics?  You  women  knocking  at  the  doors  of  this  Convention 
for  submission  may  well  pause  upon  the  threshold  of  what  you 
believe  to  be  the  promised  land,  unless  the  feeling  predominates  in 
your  breast,  "  I  am  holier  than  thou."  It  may  be  that  you  proceed 
upon  the  theory  of  the  preacher,  who,  in  reading  his  text,  turned 
two  pages  at  once:  "  And  when  Noah  was  one  hundred  and  twenty 
years  of  age  he  took  unto  himself  a  wife,"  "  which  was  three  hun- 
dred cubits  long,  fifty  cubits  wide,  made  of  gopher  wood,  and  lined 
with  pitch  inside  and  out."  Reading  it  over  again  to  verify  it,  he 
turned  to  his  audience  and  said:  "  This  is  the  first  time  I  ever  read 
that  passage  in  the  Bible,  but  it  only  shows  how  fearfully  we  are 
constructed." 

The  .apple  which  Mother  Eve  held  in  her  hand  was  tempting; 
so,  perhaps,  is  woman  suffrage  to  you;  but,  if  the  mighty  protest 
which  is  going  up  from  the  women  of  this  State  is  turned  lightly 
aside  by  you,  I  warn  you  of  the  neglect  to  heed  the  voice  of  con- 


August  14.]  CONSTITUTIONAL  CONVENTION.  433 

science  in  the  Garden  of  Eden,  which  resulted  in  bringing  untold 
suffering  upon  the  human  race,  ever  since  the  angel  of  wrath 
appeared  at  its  entrance  with  a  flaming  sword.  Oh,  woman,  poets 
have  sung  of  you,  and  men  gone  mad  over  thy  beauty,  but  before 
you  decide  to  divorce  yourselves  from  the  sphere  over  which  you 
have  held  undisputed  sway  from  time  immemorial,  let  me  remind 
you  of  the  sweet  words  of  John  Howard  Payne  — '*  Home,  Sweet 
.  Home,  there  is  no  place  like  home."  Let  me  recall  to  you 
before  you  further  pursue  the  empty  baubles  of  ambition  and  fame 
of  the  immortal  words  of  Gray: 

"  The  boast  of  heraldry,  the  pomp  of  power, 

All  that  beauty,  all  that  wealth  ere  gave, 
Await  alike  the  inevitable  hour, 

The  paths  of  glory  lead  but  to  the  grave." 

it  is  said,  however,  that  a  woman  convinced  against  her  will 
is  of  the  same  opinion  still,  and  I  repeat,  as  a  consolation  for  the 
adverse  report  of  the  committee,  the  priceless  stanza  — 

"  Full  many  a  gem  of  purest  ray  serene, 

The  dark  unfathomed  caves  of  ocean  bear; 
Full  many  a  flower  is  born  to  blush  unseen 
And  waste  its  sweetness  on  the  desert  air." 

No,  Mr.  President,  the  true  glory  of  womanhood  is  not  in  sitting 
upon  the  jury,  not  in  being  clothed  in  judicial  ermine,  not  in  being 
sent  to  the  halls  of  legislation,  not  in  following  the  example  of  the 
publican,  who  prayed  aloud  in  public  places  to  be  seen  and  heard 
of  men,  but  rather  by  such  fond  devotion  in  that  sacred  place 
where  she  stands  as  a  queen  in  the  eyes  of  all  mankind,  unrivaled 
and  unsurpassed,  as  will  enshrine  her  forever  in  the  hearts  of  the 
father,  the  husband  and  the  son.  Their  pathway  to  enduring  fame 
is  in  teaching  their  daughters  lessons  of  virtue  and  their  sons  to  be 
manly,  self-reliant  and  independent.  'Would  the  sons  of  Sparta 
have  been  more  heroic  or  patriotic,  had  their  noble  women 
possessed  the  ballot  when  they  uttered  the  historic  words :  "  Come 
back  rather  upon  your  armor  than  without  it?  "  Would  the  influ- 
ence of  the  noble  women  of  the  late  war,  God  preserve  the  memory 
of  their  heroic  deeds,  have  been  more  refining,  had  they  been 
educated  in  the  mire  of  politics?  Would  it  have  added  delicacy  to 
the  touch  of  the  hand  upon  the  fevered  brow  of  the  dying  soldier? 
No,  Mr.  President,  a  thousand  times  no!  It  would  have  robbed 
the  flower  of  its  beauty  and  fragrance. 

With  my  last  breath  will  I  defend  from  the  realm  of  politics  and 
28 


434  REVISED  RECORD.  [Tuesday, 

partisan  strife,  the  institution  which  has  cost  untold  suffering, 
heroic  sacrifice  and  the  priceless  blood  of  patriots  to  establish  and 
preserve. 

Let  us  forever  be  delivered  from  the  possibility  of  a  McGregor 
sitting  at  both  ends  of  the  table!  The  home  is  the  hope  of  our 
country  and  the  foundation  of  American  institutions. 

But,  Mr.  President,  after  carefully  reading  a  deluge  of  pamphlets 
and  papers,  and  listening  attentively  to  many  adroit  speeches  from 
the  friends  of  woman  suffrage,  at  last  we  have  it  from  the  lips  of 
their  ablest  advocate,  the  one  thing  which  is  hoped  to  be  accom- 
plished by  it.  Give  the  ballot  to  the  working  woman  so  that  her 
wages  may  be  raised  to  the  level  of  those  received  by  men.  This 
is  the  burning  question  in  their  opinion,  and,  let  me  say  here, 
with  the  greatest  respect,  this  sentence  was  applauded  by  dainty 
gloved  hands.  My  eloquent  friend  from  Greene  (Mr.  Griswold) 
rightfully  asked  the  question:  "  How  do  you  expect  to  raise  wages 
by  legislative  enactment?"  Give  her  justice  is  the  cry  in  this 
respect.  Having  the  right  of  dower,  the  responsibility  of  the  hus- 
band for  the  debts  of  the  wife,  her  present  right  of  alimony  and 
counsel  fees,  the  right  of  action  for  breach  of  promise  and  betrayal, 
together  with  a  long  list  of  other  rights  not  now  claimed  or 
possessed  by  men;  wages  is  evidently  the  only  question  in  the  entire 
realm  of  political  economy  which  they  wish  to  have  adjusted. 

In  the  name  of  our  great  State,  let  me  ask,  are  there  not  other 
great  questions  which  demand  consideration?  Are  we  not  strug- 
gling in  this  Convention  with  the  great  problem  — "  home  rule  for 
cities?''  Have  we  not  prison  reform  to  accomplish?  Are  not  the 
people  calling  for  proper  restrictions  upon  legislative  enactment? 
Does  not  the  sectarian  school  question  agitate  our  citizens  from  the 
metropolis  to  Lake  Erie?  Shall  we  not  heed  the  cry  for  judicial 
reform  and  speedier  justices  Taxation,  canals,  the  difficulties 
between  labor  and  capital,  and  other  complex  questions  con- 
front us. 

You  might  as  well  the  deep  caves  of  ocean  fathom  or  attempt  to 
gather  the  foam  from  its  topmost  billow  as  to  try  to  solve,  by  con- 
stitutional or  legislative  enactment  all  the  problems  which  confront 
the  State  and  the  nation. 

But,  in  view  of  all  these  questions,  and  in  consequence  of  the 
splendid  recognition  accorded  woman  in  the  past  from  the  Empire 
of  States,  great  in  its  charity,  great  in  education,  great  in  wealth, 
great  in  its  industrial  interests  and  great  in  the  marts  of  commerce, 
can  you  not  afford,  as  to  this  one  right,  or,  indeed,  as  to  others,  if 
any  there  be,  like  Lamartine,  "  To  place  your  frail  bark  upon  the 


August  14.]  CONSTITUTIONAL  CONVENTION.  435 

highest  promontory  of  the  beach  and  await  the  rising  of  the  tide  to 
make  it  float?" 

It  has  been  stated  upon  the  floor  of  this  Convention,  by  one  of 
its  most  distinguished  and  respected  members,  that  the  slavery  of 
women  has  been  gradually  lifted  since  1846  in  this  State,  and  that 
now  complete  emancipation  is  proposed  by  suffrage.  I  refute  the 
assertion.  The  emancipation  of  women  began  long  before  the 
Magna  Charta  was  proclaimed,  years  prior  to  the  preservation  of 
American  liberty  by  the  patriot,  Wadsworth,  in  the  famous  Charter 
Oak  at  Hartford,  centuries  before  the  fathers  of  the  republic  signed 
and  proclaimed  the  Declaration  of  Independence. 

The  Star  of  Bethlehem,  which  aroused  the  drowsy  shepherds  of 
the  East,  and  the  words  of  Him  who  spake  as  never  did  man,  was 
the  dawning  day  for  their  purity  and  independence. 

Women  of  the  great  State  of  New  York,  the  diffusion  of  Chris- 
tianity, no  matter  of  what  creed,  will  emancipate  you  more  than 
the  ballot  can  possibly  do.  Let  the  hand  which  rocks  the  cradle 
teach  the  coming  young  men  and  women  of  America  the  Lord's 
Prayer  and  the  Ten  Commandments,  and  you  will  do  more  for  your 
emancipation  and  for  every  right  which  you  may  possess  in  the 
whole  realm  of  human  rights,  than  you  can  do  with  both  hands  full 
of  white  ballots.  Do  this  and  it  will  not  be  necessary  for  you  to 
teach  them  political  ethics  or  shine  in  the  political  firmament,  to 
make  them  love  you,  fight  for  you  and  die  for  you.  Do  this  and 
they  will  revere  their  country  and  love  their  flag. 

A  few  of  the  excellent  and  worthy  women  who  are  in  this  Con- 
vention demanding  the  right  to  vote,  I  concede  would  do  so.  There 
are  thousands  of  bad  women  who  would  also  vote,  at  least,  upon 
some  questions,  thus  enforcing  upon  millions  of  modest  and  retiring 
mothers  responsibilities  from  which  they  shirk,  and  rightly  so. 
Upon  authority,  which  I  am  compelled  to  believe,  I  make  the  asser- 
tion here  that  the  result  of  female  suffrage  in  Wyoming  has  not 
changed  the  general  result  of  elections,  neither  has  it  accomplished 
a  single  reform.  At  the  same  time  it  has  doubled  expense. 

Mr.  President,  I  maintain  that  woman  suffrage  at  this  time  would 
be  not  only  a  folly,  but  that  it  might  precipitate  upon  the  State 
questions  fraught  with  the  greatest  danger  to  its  safety  and  welfare. 

For  a  number  of  years  the  best  minds  of  our  State  have  been 
engaged  in  solving  the  question  how  shall  we  purify  our  politics, 
how  best  can  honest  government  be  attained  and  how  shall  we 
defend  the  suffrage  against  bribery  and  corruption?  That  some 
progress  has  been  made  in  the  right  direction,  I  think  all  good  men 
will  admit.  But,  sir,  before  doubling  twice  over  the  voting  popu- 


436  REVISED  RECORD.  [Tuesday, 

lation  of  the  State,  with  its  untold  possibility  of  corruption,  before 
we  burden  our  taxpayers  with  a  great  expense  to  pay  for  such 
extension  of  the  suffrage,  let,  rather,  this  Convention,  under  its 
solemn  oath  taken  to  support  the  Constitution  of  the  United  States 
and  the  Constitution  of  the  great  State  of  New  York,  use  its  time 
and  bend  its  efforts  towards  purifying  the  Augean  stables  which 
we  now  have  to  contend  with,  rather  than  to  incur  the  possibility 
of  new  evils  which  we  know  not  of,  and  which  it  is  not  possible  for 
the  wisdom  of  man  at  this  time  to  comprehend. 

Gentlemen  of  the  Convention,  let  us  not  at  this  time,  by  woman 
suffrage,  or  by  its  submission  to  the  people,  but  rather  by  such 
wise  efforts  for  entire  religious  liberty,  for  the  diffusion  of  knowl- 
edge and  the  maintenance  of  our  institutions  of  learning,  for  dis- 
pensing the  greatest  charity  possible,  consistent  with  «the  cause  of 
good  government,  by  demanding  the  strictest  honesty  in  the  dis- 
charge of  all  public  affairs  and  by  defending  the  sanctity  and  purity 
of  the  fireside,  preserve  this  lovely  land,  this  glorious  liberty,  this 
priceless  legacy  of  freedom  transmitted  to  us  by  our  fathers. 
(Applause.) 

Mr.  Roche  —  Mr.  President,  it  seems  to  me  that  when  the  debate 
upon  this  subject  began  on  Wednesday  evening  last,  with  the  mag- 
nificent address  from  the  gentleman  from  New  York  (Mr.  Lauter- 
bach),  that  it  also  then  ended.  Without  intending  to  disparage  in 
any  manner  the  remarks  of  any  of  the  gentlemen  who  have  since 
addressed  the  Convention,  I  make  bold  to  say  that  no  addition  and 
no  answer  has  been  made  to  the  demand  which  that  gentleman 
then  so  eloquently  presented.  We  should  then  have  taken  a  vote 
upon  this  question,  but  gentlemen  upon  both  sides  have  chosen 
instead  to  discuss  it.  The  simple  question  is  whether  this  Conven- 
tion shall  undertake  to  say  that  a  proper  opportunity  shall  not  be 
given  to  the  voters  of  the  State  to  pass  upon  a  question  which  is  of 
deep  interest  and  which  has  been  agitated  for  many  years.  With 
the  light  which  I  now  have  I  am  not  an  advocate  of  the  extension  of 
suffrage  to  women.  While  firmly  believing  in  the  doctrine  of  man- 
hood suffrage,  I  maintain  that  the  exercise  of  the  elective  franchise 
is  not  a  natural  right.  It  is  one  which  is  to  be  regulated  or  with- 
held by  the  people,  and  is  to  be  conferred  in  such  manner  as  will 
best  promote  the  interests  of  the  State.  My  judgment  is  that  it 
will  not  be  conducive  to  the  welfare  of  the  women  of  the  State,  and, 
therefore,  not  to  the  State  itself  that  women  should  be  drawn  into 
the  arena  of  politics  and  the  heat  and  differences  and  excitements 
of  great  political  campaigns.  But  that,  sir,  is  a  question  far 
removed  from  the  one  before  us.  Thousands  of  excellent  men  and 


August  14-]  CONSTITUTIONAL  CONVENTION.  437 

thousands  of  equally  good  women  believe  that  the  addition  of  a 
large  force  to  the  electorate  of  the  State  by  conferring  the  franchise 
upon  women  will  not  only  be  an  act  of  justice,  but  will 
greatly  tend  to  the  improvement  of  our  political  methods 
and  the  purification  of  our  public  life.  They  believe  that  in  an  age  of 
Christianity,  civilization  and  the  arbitration  of  international  disputes, 
there  is  no  necessary  relation  between  the  right  or  privilege  of  vot- 
ing and  the  ability  to  handle  or  fire  the  Catling  gun.  These  people 
have  exercised  the  great  American  constitutional  right  of  petition, 
and  have  come  here  with  their  petitions,  signed  by  tens  of  thousands. 
They  have  been  heard  in  this  chamber  and  have  advocated  their 
cause  with  a  modesty,  a  brilliancy  and  a  force  that  charmed  all  who 
listened  to  them.  They  were  replied  to  by  their  opponents  at  a 
later  meeting.  There  was  no  comparison  between  the  two  gather- 
ings. (Applause.)  Or  if  one  could  have  been  instituted,  that  of  the 
opponents,  when  set  up  against  the  other,  was  as  the  pale  dying 
moon  to  the  warm,  cheerful  and  effulgent  rays  of  the  rising  sun. 
(Applause.)  These  women  ask  that  the  men  who  compose  this 
Convention  will  permit  the  men  who  go  to  the  polls  to  express  a 
simple  yes  or  no  upon  the  question  of  whether  women  may  also 
go  to  the  polls.  You  and  I  may  believe  that  they  should  not,  that 
they  would  be  better  off  for  staying  at  home  and  leaving  the  affairs 
of  State  and  the  activities  of  politics  to  be  looked  after  by  the  fathers 
and  husbands  and  the  sons;  but,  sir,  because  we  believe  this,  is  it 
just,  is  it  fair  that  we  should  deny  to  this  great  body  of  our  fellow- 
citizens  the  right  to  be  heard  before  the  tribunal  of  the  people? 
They  ask  for  their  day  in  court.  Shall  we  sit  here  because  we  have 
the  power,  and  arbitrarily  refuse  to  grant  it?  Who  are  the  petition- 
ers? Why,  the  modest  and  intellectual  women  who  addressed  the 
Suffrage  Committee  in  this  chamber,  and  whom  we  were  proud  to 
recognize  as  the  products  of  our  American  schools,  our  American 
liberty  and  our  American  institutions.  (Applause.)  They  spoke 
for  thousands  of  others  of  their  kind  throughout  this  great  State. 
They  are  the  class  of  women  who  have  the  care  of  the  youth  in  the 
schools  of  the  State;  they  uphold  the  charities,  do  the  work  of  the 
churches,  bless  the  homes,  are  to  the  front  in  every  noble  public 
endeavor,  in  the  days  of  calamity,  amidst  the  distresses  of  war, 
organize  the  hospital  service,  the  sanitary  corps,  care  for  and  relieve 
the  suffering  soldier,  and  are  part  and  parcel  of  the  great  body  of 
patriotic,  educated  and  virtuous  women  who  have  helped  to  make 
this,  the  State  of  New  York,  the  foremost  commonwealth  on  God's 
footstool.  (Applause.) 

They  may  be  mistaken,  greatly  mistaken  in  what  they  ask,  but 


438  REVISED  RECORD.          .  [Tuesday, 

the  force  with  which  the}-  ask  it,  and  the  sincerity  which  character- 
izes the  request  are  both  undeniable  and  demand  our  respectful 
consideration.  Gentlemen,  this  question  cannot  be  smothered.  It 
cannot  be  killed  by  a  simple  refusal  to  strike  the  word  "  male  " 
from  the  Constitution.  It  will  not  down  at  your  bidding.  You 
cannot  keep  it  out  of  the  halls  of  legislation,  nor  silence  debate  in 
the  press  or  upon  the  forum.  The  hooting  of  Phillips  and  the 
mobbing  of  Garrison  only  served  to  strengthen  the  movement  for 
the  abolition  of  human  slavery.  (Applause.)  The  danger  of  flood, 
the  decimation  of  fever,  the  journey  through  unknown  lands,  the 
fierce  encounter  of  the  Saracen,  only  strengthened  the  heart,  nerved 
the  arm  and  steeled  the  purpose  of  the  crusader  of  old  to  react  and 
redeem  the  Holy  Land,  and  such  it  ever  has  been  with  the  people 
who  unselfishly  battle  for  what  they  deem  to  be  a  great  principle. 

Let  us  see  what  the  Legislatures  have  done.  The  Legislatures 
have  encouraged  these  women  in  their  efforts.  If  we  do  not  give 
heed  to  their  request,  it  will  be  made  to  Legislature  after  Legisla- 
ture until  it  receives  sanction  in  some  form  and  is  presented  to  the 
people.  They  have  been  given  the  right  to  vote  for  school  trustees. 
It  was  attempted  to  confer  upon  them  the  right  to  vote  for  school 
commissioners,  but  the  attempt  was  defeated  by  the  court.  In  some 
localities  for  several  years  they  have  exercised  the  right  of  voting 
upon  questions  which  affect  the  taxpayers  of  those  localities.  They 
have  felt,  to  a  limited  extent,  the  power  of  the  ballot,  and  they  ask 
for  more.  You  but  sharpen  the  demand  when  you  turn  a  deaf  ear 
to  it.  The  true  way  to  dispose  of  this  matter,  to  stop  the  ever 
recurring  agitation,  is  to  let  the  people  themselves  pass  upon  it  in 
our  great  court  for  the  settlement  of  public  questions,  and  decide 
it  once  for  all.  We  have  authority  unquestioned  for  this  in  the 
present  Constitution,  and  I  respectfully  call  the  attention  of  the 
gentleman  from  Oneida  (Mr.  Cookinham)  to  the  fact.  The  judici- 
ary article  that  was  adopted  by  the  Convention  of  1869  and 
approved  by  the  people  in  1869,  provided  for  an  elective  judicial  sys- 
tem, but  it  also  provided  for  the  submission  to  the  electors  in  1873, 
four  years  afterwards,  whether  judges  should  be  appointed  instead 
of  elected.  This  was  done  in  deference  to  the  views  of  a  respectable 
and  influential  body  of  men  who  believed  that  better  results  would 
be  secured  by  an  appointed  than  by  an  elective  system.  It  was 
debated  in  press  and  magazine.  The  people  thought  it  all  over. 
They  voted  upon  the  question,  and  wisely  decided  by  a  large 
majority  to  retain  the  power  in  their  own  hands.  The  result  is  that 
since  that  vote,  that  question  has  been  considered  as  settled.  It  is 
not  even  broached  in  this  Convention  to-day,  and  the  subject  has 


August  14.]  CONSTITUTIONAL  CONVENTION.  439 

been  removed  from  the  realm  of  agitation  and  discussion.  The 
same  Constitutional  Convention  of  1867  and  1868  provided  for  sub- 
mitting to  the  people  in  separate  form  a  proposition  as  to  whether 
a  property  qualification  should  be  required  for  men  of  color  in  the 
exercise  of  the  elective  franchise;  and  I  want  to  say  to  the  gentle- 
man from  New  York,  who  spoke  the  other  evening,  that  the  men 
who  composed  the  Convention  of  1867  and  1868  acted  under  the 
full  obligation  and  with  the  full  sense  of  their  responsibility  and 
their  oaths,  and  they  did  not  undertake  to  say  that  men  of  color 
who  did  not  possess  property  should  not  vote,  nor  that  men  of  color 
who  did  possess  property  should  vote,  but  they  left  it  to  the  people 
themselves  to  pass  upon  the  question  whether  the  elective  franchise 
should  be  conferred  upon  men  of  color  with  or  without  property; 
and  to-night  we  debate  and  we  haggle  upon  the  question  of 
whether  the  great,  intelligent,  educated,  patriotic  women  of  the 
State  of  New  York  shall  have  the  question  of  giving  them  additional 
rights  and  privileges  submitted  in  separate  form  to  the  people 
of  the  State  themselves. 

In  1883  the  Legislature  submitted  to  the  people  the  question  of 
whether  contract  labor  should  thereafter  be  abolished  in  the  pre- 
cincts of  the  State,  and  in  1894  the  question  of  whether  a  rapid 
transit  system  should  be  built  in  the  city  of  New  York  at  public 
expense,  is  to  be  passed  upon  by  the  people  themselves  at  the  polls. 
Why,  the  very  law  which  provides  for  the  election  and  assembling  of 
this  Convention  contemplates  that  you  will  submit  propositions 
separately  to  the  people,  and,  further,  that  you  may  provide  for 
these  propositions  taking  effect  at  different  times.  Just  let  me  call 
your  attention  to  the  words  of  the  statute,  section  10:  "  Said  amend- 
ments or  revised  Constitution  shall  be  submitted  by  the  Conven- 
tion to  the  people  for  their  adoption  or  rejection  at  the  general 
election  in  1894.  The  said  amendments  or  the  said  Constitution 
shall  be  voted  upon  as  a  whole  or  in  such  separate  propositions  as 
the  Convention  shall  deem  practicable,  and  as  the  Convention  shall 
by  resolution  declare."  It  then  goes  on  to  provide  that  these 
propositions,  if  adopted  by  the  people,  shall  take  effect  from  and 
after  the  3ist  day  of  December,  1894,  unless  the  said  Convention 
shall  prescribe  some  other  time  in  which  the  same  shall  take  effect, 
and  the  Convention  may,  in  its  discretion,  by  resolution,  fix  a  time 
other  than  the  foregoing.  Can  it  be?  Mr.  President,  it  seems  to 
me  that  if  gentlemen  desire  to  oppose  this  matter,  they  should  put 
forward  some  ground  that  has  a  better  foundation  in  the  law  and 
common  sense,  than  the  argument  that  we  are  to  sit  here  and  abso- 
lutely determine  what  shall  go  into  this  Constitution,  and  that  that, 


440  REVISED   RECORD.  [Tuesday, 

and  nothing  else,  shall  take  effect,  if  approved  by  the  people,  on  the 
thirty-first  day  of  December  next.  (Applause.)  Can  it  be  that  the 
citizens  of  this  State  will  arraign  this  Convention  because  the  Con- 
vention submits  it  to  them  to  determine  the  question?  Can  it  be 
that  the  citizens  of  the  State  will  be  so  angry  with  this  Constitution 
this  fall  that  they  will  vote  it  all  down  because  we  propose  to  let 
them  pass  upon  another  feature  of  it  at  the  following  fall  election? 
Is  that  the  idea  the  gentlemen  have  of  the  intelligence  and  discrimi- 
nation of  the  electors  of  this  State?  I  should  judge  it  was,  from  the 
remarks  of  the  gentleman  from  Oneida  (Mr.  Cookinham).  I  should 
judge  it  was,  too,  from  a  little  pamphlet  which  I  received  this  even- 
ing; and  I  can  hardly  forgive  the  writer,  who  hails  from  Kingston, 
for  addressing  it  to  me  as  simply,  "  Mr.  Roche,  Troy,  New  York." 
It  is  headed:  "Some  Reasons  Against  Woman  Suffrage."  It  is  a 
printed  pamphlet,  and  one  of  the  reasons,  the  second,  reads  as  fol 
lows:  "Any  advantage,  arising  from  the  vote  of  women  who  are 
intelligent  and  high  principled,  would  be  utterly  lost  in  the  evil 
wrought  by  the  ignorant  and  degraded  women  voters.  Such 
women  are  the  majority."  And  for  fear  there  would  be  any  mistake 
about  it,  the  words,  "  Such  women  are  the  majority,"  are  printed  in 
italics.  Gentlemen,  is  this  true?  Does  the  Convention  adopt  these 
reasons?  Are  they  to  be  put  forward  to  sustain  the  adverse  report 
of  the  committee?  Do  you  believe  in  this  shameless,  libelous  indict- 
ment of  the  womanhood  of  this  State  of  New  York? 

Now  I  wish  to  say  to  the  gentleman  from  Oneida  (Mr.  Cookin- 
ham), that  I  think  some  of  us  may  be  a  little  too  arrogant.  We 
may  assume  too  much  when  we  undertake  to  speak  for  the  State. 
I  shall  expect,  Mr.  President,  to  find  that  a  gentleman  who  spoke 
for  the  State  as  he  said,  men,  women,  boys  and  girls,  all  except 
200,000,  would  have  such  a  sense  of  weighty  responsibility  upon 
his  shoulders  that  he  would  speedily  become  round-shouldered. 
And  yet  I  find  the  gentleman  stands  up  straight  and  prim  in  his 
address  before  this  Convention.  Mr.  President,  permit  me  to  sug- 
gest that  it  is  the  gentlemen  who  are  in  favor  of  this  Tucker 
amendment  who  speak  for  the  State  of  New  York,  who  express 
their  confidence  in  the  people  of  the  State  of  New  York,  who  have 
that  much  faith  in  Democracy  and  Republicanism  that  they  are 
willing  to  leave  this  great  debatable  question  to  be  passed  upon  by 
the  people  themselves.  (Applause.)  Mr.  President,  I  find  that  the 
Republican  national  convention  of  1876  in  its  platform  expressed 
its  approval  of  the  advances  which  had  been  made  for  equal  rights 
of  women,  not  only  with  reference  to  their  property,  but  also  their 
appointment  and  election  as  superintendents  of  charities,  education 


August  14.]  CONSTITUTIONAL  CONVENTION.  441 

and  other  trusts ;  and  continued  in  these  words :  "  The  honest 
demands  of  this  class  of  citizens  for  additional  rights,  privileges  and 
immunities  should  be  treated  with  respectful  consideration."  Are 
the  distinguished  Republicans  who  are  responsible  for  the  work  of 
this  Convention  willing  to  carry  into  effect  that  national  declaration 
of  their  party  by  submitting  this  proposition  to  the  voters  of  this 
State?  If  not,  why  not?  If  the  concentrated  wisdom  of  the 
Republican  party  from  Maine  to  California  thought  that  this  was  a 
just  and  sensible  thing  in  1876,  in  God's  name  what  has  occurred 
in  the  State  of  New  York  since  that  time  that  would  justify  the 
intelligent  and  clear-headed  representatives  of  that  party  in  this 
Convention  in  refusing  to  give  even  slight  effect  to  the  national 
declaration  of  the  party?  (Applause.) 

Mr.  President,  we  can  afford  to  give  women  this  hearing.  They 
have  come  here  in  number  sufficient  to  justify  their  request.  I 
notice  that  an  attempt  has  been  made  to  pull  these  petitions  to 
pieces,  and  the  gentleman  from  Oneida  (Mr.  Cookinham),  after  a 
thorough  examination  (and  I  understand  that  the  clerk  of  the  com- 
mittee was  engaged  several  days  in  making  a  most  critical  inspec- 
tion of  these  petitions),  found  the  duplication  of,  I  believe,  five 
names,  and  they  were  all  from  his  own  county  of  Oneida  (laughter), 
and  I  regret  very  much  that  they  had  a  ministerial  heading  and 
approval.  The  mountain  labored  and  produced  not  one  mouse  but 
five  mice. 

Mr.  Cookinham  —  Mr.  President,  will  the  gentleman  allow  me  to 
ask  him  a  question? 

Mr.  Roche  —  Certainly. 

Mr.  Cookinham  —  Mr.  President,  what  about  five  names? 

Mr.  Roche  —  I  understood  the  gentleman  to  say  that  there  was 
a  duplication  of  five  names. 

Mr.  Cookinham  —  I  said  no  such  thing,  or  anything  that  possibly 
could  be  construed  in  that  way. 
Mr.  Roche  —  Well,  what  was  it? 

Mr.  Cookinham  —  I  said  that  they  were  triplicated  and 
quadruplicated. 

Mr.  Roche  —  To  what  extent? 

Mr.  Cookinham  —  To  thousands,  tens  of  thousands. 

Mr.  Roche  —  Oh,  tens  of  thousands!  Well,  it  unfortunately  hap- 
pens that  the  people  of  the  State  do  not  all  have  separate  names, 
and  the  gentleman  has  been  looking  through  colored  glasses.  I 
think  it  would  be  better,  and  more  in  accord  with  what  we  owe, 


442  REVISED  RECORD.  [Tuesday, 

and  what  we  believe  we  owe,  to  the  honest  people  of  the  State, 
to  assume  that  there  are  many  men  with  similar  names  and  many 
women  of  similar  names,  and  then  what  appears  to  him  to  be 
the  same  man  or  the  same  place  may  be  accounted  for  by  the 
fact  that  there  are  a  good  many  men  of  the  same  name  living  in 
his  own  locality. 

Now,  Mr.  President,  I  said  that  we  could  afford  to  leave  this 
question,  so  that  we  can  give  the  women  this  hearing.  What 
excuse  is  there  for  not  doing  it?  Gentlemen,  let  me  ask  you  a 
question.  Do  you  believe  that  the  people  will  be  with  them?  Do- 
you  believe  that  and  still  refuse  the  hearing?  If  you  do,  you 
thereby  confess  the  justice  of  their  cause  and  your  own  cowardice. 
(Applause.)  Do  you  believe  that  the  voters  will  be  against  them? 
If  so,  why  hesitate  to  let  that  be  determined,  and  thereby  remove 
this  subject  from  the  realm  of  agitation.  This  is  no  mere  species 
of  crankism.  It  is  no  proposition  for  the  invasion  of  personal  lib- 
erty. It  is  not  any  of  the  ridiculous  things  that  come  here,  backed 
by  a  mere  handful  of  people.  If  it  were  it  would  receive  short  shrift 
in  this  Convention.  On  the  contrary,  tens  of  thousands  of  the  best 
and  most  highly  educated  citizens  of  the  State  of  New  York  believe 
that  it  is  another  step  forward  in  the  paths  of  progress  that  have 
been  blazoned  by  the  men  of  the  Empire  State.  In  the  words  of  the 
poet: 

"  Men,  my  brothers,  come;  men,  the  workers,  come; 
Ever  reaping  something  new; 

That  which  they  have  done  but  earnest  of  the  things  that  they  shall 
do." 

Let  us  have  the  courage,  let  us  have  the  fairness  to  submit  this 
question  at  the  proper  time,  and  in  the  proper  form,  to  the  people  of 
the  State  of  New  York.  Let  us  show  our  faith  in  them,  in  their 
intelligence  and  discrimination,  and  all  good  citizens  will  abide  by 
the  result.  (Applause.) 

Mr.  Hirschberg  —  Mr.  President,  I  shall- speak  in  accordance 
with  my  convictions  and  not  in  opposition  to  them.  The  question 
before  the  Convention  is  whether  or  not  we  will  adopt  the  report  of 
the  committee.  The  report  of  the  committee  is  adverse  to  the  prop- 
osition that  the  question  of  woman  suffrage  shall  be  submitted  to- 
the  people  at  the  general  election  immediately  succeeding  the  adop- 
tion of  our  proposed  Constitution.  Directly  involved,  therefore, 
is  the  question  of  the  justice,  propriety  and  expediency  of  universal 
suffrage  in  this  State,  and  no  man  can  conscientiously  vote  against 
the  report  of  the  committee  unless  he  is  honestly  of  the  opinion  that 


August  14.]  CONSTITUTIONAL  CONVENTION.  443 

the  time  has  come  when  women  should  be  required  to  actively  par- 
ticipate in  political  life.  The  advocates  of  this  extended  suffrage 
have  indeed  endeavored  to  obscure  the  real  issue  by  the  adroit 
suggestion  that  as  only  the  question  of  submission  to  the  people  is 
presented,  a  delegate  might  vote  for  such  submission  even  although 
he  is  opposed  to  the  alleged  reform;  but  it  will  at  once  occur  to  the 
thoughtful  that  this  Convention  can  only  submit  questions  to  the 
people  —  that  such  submission  is  the  sum  of  its  province  and  its 
powers  —  that  it  cannot  itself  adopt  anything,  however  meritorious 
—  and  that,  therefore,  submission  of  a  question  to  the  people  neces- 
sarily implies  that  the  question  submitted  has  first  received  the 
approval  of  this  body.  In  this  same  connection,  it  is  also  urged 
that  the  suffrage  question  is  one  on  which  the  people  are  as  well 
informed  as  the  Convention;  that  its  determination  requires  no 
scientific,  expert  or  technical  knowledge,  and  that,  therefore,  a 
delegate  may  safely  entrust  its  decision  to  the  people  without  pay- 
ing the  slightest  heed  to  his  own  views  or  judgment.  But,  sir,  are 
not  the  people  equally  well  qualified  to  judge  and  to  pass  upon 
the  merits  of  each  and  every  other  question  which  may  come 
before  this  body  for  preliminary  determination?  Does  not  the  law 
which  compels  the  submission  of  our  entire  work  to  the  people  for 
their  intelligent  approval  or  rejection  necessarily  imply  that  they 
are  competent  to  decide?  And  are  we  relieved  from  the  duty  of 
considering  and  deciding  a  question  simply  because  it  is  easy  of 
solution?  Can  we  evade  our  responsibility  by  the  mere  assertion 
that  the  matter  is  one  of  which  the  people  can  judge  as  well  as  we? 
I  do  "not,  sir,  for  a  moment  admit  that  the  suffrage  question  is  so 
easy  of  solution.  On  the  contrary,  I  think  it  is  one  which  pecu- 
liarly requires  thought,  study,  investigation  and  deliberation,  and 
that  no  man  should  assume  the  responsibility  of  fastening  by  his 
vote  to-night  so  radical  an  innovation  upon  our  political  system  as 
is  now  contemplated  without  the  most  mature  and  thorough  exami- 
nation of  its  probable  working;  but  whether  it  is  an  abstruse  or  a 
simple  question,  it  is  very  clear  that  our  duty  requires  us  to  decide 
it  now  upon  the  merits,  just  as  we  decide  everything  else  which 
com.es  before  us.  (Applause.) 

The  argument  is  specious,  is  unsound,  is  dishonest,  which  would 
betray  us  into  voting  as  members  of  the  Convention  contrary  to  our 
convictions,  in  order  merely  to  enable  the  electors  of  the  State  to 
rebuke  us  at  the  polls.  Let  us  vote,  then,  as  we  believe.  If  in 
favor  of  female  suffrage,  we  will  reject  the  committee's  report.  If 
we  oppose  such  suffrage,  we  will  sustain  the  report.  We  will  pre- 
sent to  the  people  for  their  acceptance  only  what  we  approve,  and 


444  REVISED  RECORD.  [Tuesday, 

so  acting,  we  will  have  honorably  discharged  our  trust,  and  we  will 
not  be  placed  in  the  false  position  of  apparently  lending  the  great 
weight  of  our  affirmative  support  to  a  measure,  of  the  wisdom  and 
propriety  of  which  we  are  in  doubt. 

Besides,  sir,  we  must  not  forget  that  the  people  can  always  dis- 
pose of  this  question  without  our  aid  or  intervention.  If  there  is  a 
general  desire  on  the  part  of  the  people  to  vote  on  this  question, 
the  law  is  broad  enough  to  enable  them  to  do  it.  The  Legislature, 
in  obedience  to  public  opinion,  will  cause  a  submission  of  this  ques- 
tion to  the  people  whenever  public  opinion  on  the  subject  is  strong 
enough  to  make  itself  felt.  So  submitted  it  will  be  presented  as  a 
separate  and  independent  matter,  entirely  apart  from  a  general 
revision  of  the  Constitution.  But  such  a  separate  submission  made 
at  a  separate  election  is  precisely  what  is  contemplated  by  the  meas- 
ure now  before  us,  and,  therefore,  in  adopting  it  we,  in  a  limited 
sense,  may  be  said  to  usurp  the  proper  province  of  the  Legislature. 

The  suggestions  made  by  the  advocates  of  the  measure,  that  we 
should  submit  it  separately,  and  not  as  an  inherent  and  component 
part  of  our  work,  but  at  an  independent  and  different  election,  and 
should  disregard  our  personal  and  individual  convictions  in  doing 
so,  seem  clearly  to  me  to  involve  a  confession  of  devious,  unmanly 
and  indefensible  treatment  of  a  great  question,  whose  ill-advised 
decision  may  be  fraught  with  infinite  mischief  and  injury  to  the 
interests  and  welfare  of  the  State.  (Applause.) 

Now,  Mr.  President,  I  have  listened  to  the  speeches  which  have 
been  delivered  here  by  the  supporters  of  this  movement,  and  on  the 
merits  of  the  question  remain  unconvinced.  The  burden  of  the  case 
rests  with  those  who  would  disturb  the  existing  order  of  things, 
and,  to  my  mind,  nothing  has  been  urged  by  them  which  should 
carry  conviction.  There  has  been  considerable  inflammatory  decla- 
mation, a  great  deal  of  emotional  sentiment,  some  rhetorica' 
denunciation,  a  little  good-natured  poetical  and  trenchant  buffoon- 
ery, but  of  pure  and  powerful  argument,  calculated  to  satisfy  the 
sober  judgment  that  the  State  is  ripe  for  female  government  and 
control,  there  has  been  nothing.  No  advocate  of  the  measure  has 
demonstrated  that  active  participation  in  the  affairs  of  the  State'  can 
be  assumed  at  this  time  by  our  female  citizens  without  injury  to 
both.  Until  that  is  done  —  until  it  is  shown  that  woman  may 
become  a  politician  without  losing  something  of  the  precious  charm 
of  her  personality,  and  that  the  State  may  exact  her  services  in  that 
capacity  without  imperilling  its  stability  and  tranquility,  it  is  surely 
the  conservative  course  of  wisdom  to  retain  the  existing  conditions 
under  which  we  have  achieved  our  great  happiness  and  prosperity. 


August  14.]  CONSTITUTIONAL  CONVENTION.  445 

The  present  position  of  woman  in  this  State  is  most  enviable. 
She  has  education  in  its  fullest  and  highest  development.  She  has 
the  absollute  and  unfettered  ownership  of  her  property.  Every 
avenue  of  trade  for  which  she  is  physically  fitted  is  freely  opened 
to  her  and  in  the  enjoyment  of  her  rights  she  is  protected  by  equal 
laws,  which  are  jealously  and  even  sympathetically  enforced  for  her 
benefit.  Never  has  there  been  a  time  in  the  history  of  the  world 
when  her  happiness  has  been  so  assured,  her  advancement  so  stimu- 
lated and  encouraged,  or  her  independence,  within  the  limits  of  her 
physical  possibilities  and  the  necessity  of  a  continuance  of  her 
domestic  dominion,  so  ample  and  so  protected.  In  the  domains  of 
science,  of  art,  of  literature  and  of  charitable  and  religious  labor,  her 
position  is  that  of  a  specially-invited  and  a  favored  worker.  And 
with  it  all,  she  is  still  permitted  to  retain  her  essentially  sweet  and 
feminine  qualities,  which  draw  to  her  the  respect,  the  deference  and 
the  homage  of  man,  commensurate  in  its  nature,  extent,  intensity 
and  chivalry  with  the  ennobling  advancement  of  our  civilization. 
She  rules  at  the  fireside,  in  the  school-room,  by  the  bed  of  pain  and 
in  the  temples  of  charity;  and  her  powerful  influence  pervades 
every  department  of  human  endeavor,  industry  and  enlightenment, 
unmixed  with  baser  matter.  She  is  recognized  as  the  great  and 
tender  ameliorating  factor  in  every  relation  of  our  complex  life. 
She  sweetens  and  glorifies  prosperity;  she  soothes  and  alleviates 
adversity.  "  Poverty  is  not  felt  amid  the  consolations  of  her  com- 
panionship, and  sorrow  ceases  in  the  presence  of  her  smiles."  I 
would  not  drag  her  down  from  this  high  and  favored  position  at 
the  instigation  of  thoughtless  agitators  to  take  her  chances  in  the 
turmoil  of  our  political  life,  without  the  clearest  evidence  that  it  is 
necessary  for  the  maintenance  of  her  independence  and  the  preserva- 
tion of  her  happiness.  I  would  not  apply  the  flame  of  partisan  strife 
to  the  fuel  of  domestic  discord.  I  would  not  endanger  the  quiet 
of  our  homes  by  an  additional  element  of  disruption,  of  contention, 
of  bitterness  and  animosity,  under  circumstances,  in  which  if  there 
is  union,  the  same  voice  would  still  be  uttered  at  the  polls',  but  in 
which,  if  there  should  be  independent  and  differing  thought  and 
action,  the  house  would  become  inevitably  and  forever  divided 
against  itself.  (Applause.) 

Should  the  time  ever  come  when  woman  herself,  by  a  fair  pre- 
ponderance in  number,  demands  the  ballot,  and  public  opinion  sup- 
ports the  demand  with  an  unmistakable  voice  and  emphasis,  and 
should  the  time  also  come  when  party  politics  shall  be  so  pure  that 
the  presence  of  woman  at  the  polls  would  not  be  incongruous,  and 
party  feeling  so  subdued  that  opposition  from  those  we  love  could 


446  REVISED  RECORD.  [Tuesday, 

be  freely  tolerated  by  our  better  natures,  the  experiment  of  female 
suffrage  might  possibly  be  safely  tried;  but  until  then  let  woman  be 
content  with  her  present  exalted  and  advancing  sphere;  developing 
to  the  fullest  degree,  within  the  lines  and  limits  of  her  sexuality, 
all  her  capabilities  for  the  good  of  humanity;  rendering  her  share 
to  the  sum  of  civic  happiness  in  the  practice  of  domestic  virtues; 
freed  from  the  burdens  of  State  which  she  is  unfitted  to  endure, 
either  in  its  defense  in  war  or  in  its  police  in  peace;  not  directly 
shaping  its  policy  or  framing  and  enforcing  its  government,  but 
exercising  an  influence  both  powerful  and  benign  in  the  education, 
the  nurture  and  the  training  of  its  youth;  depending  for  her 
advancement  on  the  strength  of  her  innate  womanly  power,  and  for 
her  protection  on  a  manhood  which  has  as  yet  never  failed  her; 
guiding  our  lives  by  the  gentleness  of  her  nature,  the  purity  of  her 
impulses,  the  sweetness  of  her  disposition,  the  uprightness  of  her 
principles,  the  tenderness  of  her  heart  and  the  magnetism  of  her 
love,  and  thereby  wielding  a  control  beyond  the  potency  even  of  her 
ballot;  and  finding  at  all  times  and  in  all  places,  and  in  every  walk 
and  relation  of  life,  her  truest,  and  highest  and  holiest  dominion 
in  the  effect  of  spotless  precept  and  example. 

"  Filling  the  soul  with  sentiments  august, 
The  beautiful,  the  brave,  the  holy  and  the  just." 

Such,  sir,  is  the  high  and  congenial  place  assigned  to  woman  in 
the  social  and  political  fabric  of  the  State,  and  such  may  it  remain 
as  long  as  the  American  heart  shall  throb  to  the  music  of  domestic 
harmony.  (Applause.) 

Mr.  Alvord  —  Mr.  President,  this  question  is,  by  the  rule  which 
has  already  been  adopted,  made  the  special  order  of  business  upon 
each  legislative  evening  until  it  is  finished.  Very  many  of  the 
gentlemen  present  to-night  have  been  under  the  necessity  of  arriv- 
ing here  in  the  middle  of  the  preceding  night.  To-morrow  our 
three  sessions  a  day  will  begin.  It  is  asking  too  much  of  human 
endurance,  in  my  opinion,  to  remain  longer  in  session  on  this  occa- 
sion. I,  therefore,  move  you  that  the  Convention  do  now  adjourn. 

Mr.  Becker —  Mr.  President,  I  merely  wish  to  have  it  understood 
one  way  or  the  other  whether  the  three  sessions  a  day  begin 
to-morrow  or  day  after  to-morrow.  I  understand  from  the  minutes 
they  begin  day  after  to-morrow. 

The  President  —  The  gentleman  understands  it  correctly. 

The  President  put  the  question  upon  the  motion  of  Mr.  Alvord 
that  the  Convention  do  now  adjourn,  whereon  it  then  adjourned  to 
August  15,  1894,  at  10  A.  M. 


August  14.]  CONSTITUTIONAL  CONVENTION.  447 

'Wednesday,  A.  M.,  August  15,  1894. 

The  Constitutional  Convention  of  the  State  of  New  York  met  in 
the  Assembly  Chamber,  at  the  Capitol,  Wednesday  morning,  Aug- 
ust 15,  1894. 

President  Choate  called  the  Convention  to  order  at  10  A.  M. 
The  Rev.  W.  N.  P.  Dailey  offered  prayer. 

On  motion  of  Mr.  A.  H.  Green,  the  reading  of  the  minutes  of 
Tuesday,  August  fourteenth,  was  dispensed  with. 

The  President  announced  the  order  of  petitions  and  memorials. 
Mr.    Dean  —  Mr.    President,    I    have   a    memorial   from    Union 
Grange  in  reference  to  taxation. 

Referred  to  the  Committee  on  State  Finances  and  Taxation. 
Mr.  Manley  —  Mr.  President,  I  present  a  proposed  amendment. 

The  President  —  That  is  not  in  order  at  present.  It  will  require 
a  vote  of  the  Convention.  It  will  come  up  in  the  order  of  resolu- 
tions, if  you  wish  to  take  a  vote  of  the  Convention  on  it.  Notices, 
motions  and  resolutions  are  in  order.  The  Secretary  will  call  the 
districts. 

Mr.  Jesse  Johnson  —  Mr.  President,  I  move  that  the  article 
reported  by  the  Cities  Committee,  general  order  No.  13,  be  recom- 
mitted to  the  Committee  on  Cities,  with  power  to  report  complete, 
retaining  its  place  on  general  orders. 

Mr.  Holls  —  With  all  amendments? 

Mr.  Johnson  —  And  that  all  amendments  be  likewise  referred. 

Mr.  Vedder  —  Mr.  President,  I  make  the  point  of  order  that  no 
such  motion  is  in  order,  for  it  in  effect  sends  the  proposition,  after 
being  reported  by  the  committee  complete,  to  the  order  of  third 
reading,  thus  doing  away  with  the  consideration  of  the  subject  in 
the  Committee  of  the  Whole,  or,  in  fact,  in  the  Convention,  except 
under  the  limitations  provided  by  the  rules,  and  it  in  effect  cuts  off 
all  amendments,  except  such  as  may  receive  unanimous  consent. 

The  President  —  The  Chair  is  of  the  opinion  that  the  motion  is 
in  order  for  consideration.  The  motion  is  made  by  Mr.  Johnson 
at  the  request  of  the  Committee  on  Cities,  with  the  amendments 
proposed,  and  all  amendments  and  substitutes  be  recommitted  to 
the  Committee  on  Cities,  with  directions  to  report  complete. 

Mr.  Jenks  —  Mr.  President,  I  had  proposed  this  morning  to  offer 
.some  amendments  to  the  article  in  its  present  form,  and  I  would 


448  REVISED   RECORD.  [Wednesday, 

ask  whether  Mr.  Johnson  would  permit  me,  notwithstanding  his 
motion,  to  submit  the  amendments  this  morning. 

Mr.  Johnson  —  I  would  include  the  amendments  which  Mr. 
Jenks  wishes  to  submit  in  the  motion. 

Mr.  Tekulsky  —  Mr.  President,  I  intended  to  offer  amendments 
to  the  home  rule  measure  and  submit  them  this  morning. 

The  President  — Will  Mr.  Johnson's  motion  cover  all  amendments 
now  submitted  or  ready  to  be  submitted? 

Mr.  Bowers  —  I  assume  that  it  covers  the  substitutes  as  well  as 
the  amendments. 

The  President  —  All  substitutes  or  amendments  now  proposed 
or  ready  to  be  proposed? 

Mr.  Durfee  —  What  will  be  the  effect  of  the  report  of  the  commit- 
tee reporting  this  proposed  amendment  complete? 

The  President  —  I  understand  that  it  will  retain  its  place  on  gen- 
eral orders  and  will  go  to  the  Committee  of  the  Whole  for 
consideration. 

Mr.  Bowers  —  Why  should  we  take  the  language  "  report  com- 
plete? "  Why  should  it  not  be  sufficient  to  simply  report  it  back  to 
the  committee? 

Mr.  Durfee  —  Mr.  President,  as  I  understand  it,  that  expression, 
in  the  Legislature  at  least,  carries  with  it  the  power  to  report  a 
bill  in  a  form  for  its  final  passage,  and  that  it  thereupon  goes  to  a 
third  reading  without  further  consideration.  Now,  what  may  be 
the  effect  of  it  here  would  depend,  perhaps,  to  some  extent,  or 
entirely,  upon  the  question  whether  or  not  this  body  is  to  observe 
the  rules  that  obtain  in  the  Legislature,  and  it  was  with  a  view  of 
ascertaining  the  sentiment  of  the  Chair  and  of  the  Convention  upon 
that  point  that  I  made  the  inquiry. 

Mr.  Johnson  —  Mr.  President,  this  motion  is  made  with  the 
understanding  that  when  the  report*  comes  in,  if  the  motion  is 
adopted,  it  may  then  be  considered  by  the  Convention  without 
going  into  Committee  of  the  Whole.  I  have  stated  what  I  under- 
stand. The  reason  for  making  the  motion  in  that  form  is  this,  the 
Committee  on  Cities  had  apprehended  that  the  Convention  had 
heard  this  article  discussed  much  longer  than  they  desired.  When 
it  comes  into  the  Convention,  it  is  then  open  to  amendment,  then 
open  to  discussion,  then  open  to  consideration  in  every  respect  as 
now  without  this  motion.  It  saves  one  stage  of  the  process,  having 
been  fullv  discussed  here.  I  think,  Mr.  Chairman,  that  it  will 


August  15.]  CONSTITUTIONAL  CONVENTION.  449 

expedite  business,  that  it  will  give  no  possible  advantage,  and 
will  in  every  way  tend  to  secure  a  more  intelligent  result. 

The  President — The  Chair  would  remind  Mr.  Johnson,  the 
maker  of  this  motion,  that  amendments  cannot  be  made  except  in 
Committee  of  the  Whole. 

Mr.  Bowers  —  Mr.  President,  I  move  to  amend  Mr.  Johnson's 
resolution,  so  that  it  will  read  that  the  report  and  all  the  amend- 
ments and  substitutes  be  referred  back  to  the  Committee  on  Cities, 
with  power  to  report  anew  to  this  Convention.  The  statement  now 
made  by  the  chairman  of  the  Committee  on  Cities  shows  that  he 
has  inadvertently,  perhaps,  been  drawn  into  the  position  of  placing 
this  Convention  in  such  a  situation  that  it  can  never  again  discuss 
the  report  that  is  made,  except  by  the  limitation  of  one  hour,  which 
is  permitted  by  the  rules,  before  the  vote  on  final  passage  is  taken. 
I  scarcely  believe  that  he  could  desire  thus,  without  fair  notice  to 
the  Convention,  to  limit  debate,  as  he  would  by  this  means  do,  and 
it  seems  to  me  that  when  the  rules  are  called  to  the  gentleman's 
attention,  that  he  himself  will  see  the  impropriety  of  requiring  this 
report  to  be  made  complete  and  deprive  us  of  the  opportunity  of 
again  amending  it  and  discussing  it.  I  shall  not  at  this  time  attempt 
to  go  over  — 

Mr.  Johnson  —  Does  the  Chair  rule  that  it  cannot  be  amended  in 
the  Convention? 

The  President  —  Not  as  a  matter  of  right. 

Mr.  Johnson  —  I  understood  the  rule  was  different.  I  do  not 
attempt  to  say  I  know  the  rules.  If  that  is  the  ruling  of  the  Chair, 
I  will  withdraw  the  word  "  complete."  I  do  not  wish  to  have  it  in 
any  way  that  we  cannot  have  full  opportunity  to  amend  and  dis- 
cuss it.  I  withdraw  the  word  "  complete." 

Air.  Bowers — Does  the  gentleman  accept  my  amendment? 

Mr.  Johnson  —  I  withdraw  the  word  "  complete."  I  did  not 
understand  that  it  precluded  discussion  and  amendment. 

Mr.  Bowers  —  Will  the  Secretary  now  read  the  resolution  as  it 
stands? 

The  President  —  The  Secretary  will  read  the  resolution  as 
amended. 

The  Secretary  read  the  resolution  as  follows: 
"  Mr.  Johnson  moves  that  general  order  No.  13,  to  provide  home, 
rule  for  cities,  be  recommitted,  together  with  all  amendments  and 
29 


450  REVISED  RECORD.  [Wednesday, 

substitutes  offered,  to  the  Committee  on  Cities,  with  instructions  to 
report  anew,  retaining  its  place  on  general  orders." 

The  President  put  the  question  on  Mr.  Johnson's  resolution,  and 
it  was  determined  in  the  affirmative. 

Mr.  Veeder  —  Mr.  President,  I  was  going  to  inquire  how  we  can 
amend  that  report  further.  That  says  "  amendments  offered."  I 
desire  with  several  gentlemen  to  offer  further  amendments. 

The  President  —  All  delegates  having  amendments  to  propose  to 
the  report  of  the  Committee  on  Cities  will  please  present  them  to 
the  Secretary,  so  they  can  go  to  the  committee. 

Mr.  Veeder  —  Very  well,  that  is  what  I  wanted  to  know. 

Mr.  H.  A.  Clark  —  Mr.  President,  Mr.  Barnum  was  called  away 
last  evening,  and  requests  that  he  be  excused  for  the  balance  of  the 
day. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Barnum,  as  requested,  and  it  was  determined  in  the 
affirmative. 

Mr.  Deyo  —  Mr.  President,  Mr.  Platzek  has  been  called  away  by 
the  illness  of  his  mother,  and,  on  his  behalf,  I  ask  that  he  be 
excused  for  to-day. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Platzek,  as  requested,  and  it  was  determined  in  the  affirmative. 

Mr.  A.  H.  Green  —  Mr.  President,  I  move  that  the  report  of  the 
Special  Committee  on  Transfer  of  Land  Titles,  general  order  No.  5, 
be  recommitted  to  the  special  committee,  with  power  to  report,  and 
that  it  retain  its  place  on  general  orders. 

The  President  put  the  question  on  the  motion  of  Mr.  Green,  and 
it  was  determined  in  the  affirmative. 

Mr.  Becker  —  Mr.  President,  I  desire  to  move  that  the  privileges 
of  the  floor  be  granted  to  the  Honorable  Martin  I.  Townsend,  of 
Troy,  N.  Y.,  a  member  of  the  Constitutional  Convention  of  1867. 

The  President  put  the  question,  and  it  was  determined  in  the 
affirmative. 

Mr.  Dickey  —  Mr.  President,  I  ask  leave  of  absence  on  Saturday 
of  this  week,  as  I  have  been  appointed  referee  to  sell  some  real 
estate  at  home  on  that  day. 

The  President  put  the  question  on  granting  leave  of  absence  to 

Mr.  Dickey,  as  requested,  and  it  was  determined  in  the  affirmative. 

Mr.  Tibbetts  —  Mr.  President,  I  desire  to  be  excused  from  attend- 


August  15.]  CONSTITUTIONAL  CONVENTION.  451 

ance  on  Saturday  of  this  week  and  Monday  of  next  week,  on 
account  of  business  engagements. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Tibbetts,  as  requested,  and  it  was  determined  in  the  affirmative. 

Mr.  Hirschberg  —  I  ask  to  be  excused  to-morrow  and  Friday. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Hirschberg,  as  requested,  and  it  was  determined  in  the 
affirmative. 

Mr.  Cornwell  —  Mr.  President,  I  ask  to  be  excused  from  attend- 
ance on  Friday  and  Saturday  of  this  week  on  account  of  business 
engagements. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Cornwell,  as  requested,  and  it  was  determined  in  the  affirmative. 

Mr.  Acker  offered  the  following  resolution: 

Resolved,  That  the  proposition  introduced  by  Mr.  Andrew  H. 
Green,  and  reported  by  the  Select  Committee  on  Further  Amend- 
ments, and  referred  to  the  Committee  on  State  Finances  and  Tax- 
ation, entitled  a  proposition  relating  to  money  collected  for  the 
State,  cities,  counties,  towns,  villages  and  school  districts,  be 
printed. 

The  President  put  the  question  on  the  resolution  of  Mr.  Acker, 
and  it  was  determined  in  the  affirmative. 

Mr.  Doty  —  Mr.  President,  I  desire  to  move  that  the  Secretary 
be  directed  to  transmit  to  each  county  clerk  and  each  clerk  of  the 
board  of  supervisors  in  each  county,  a  copy  of  Document  No.  50, 
which  seems  to  contain  very  valuable  information. 

The  President  —  Will  you  please  send  that  up  in  writing,  so  that 
the  Secretary  can  make  a  proper  record  of  it. 

Mr.  Cookinham  —  Mr.  President,  my  district  is  passed,  but  I 
desire  to  offer  the  following  resolution: 

R.  171. —  Resolved,  That  the  Committee  on  Rules  fix  a  time 
limiting  the  debate  upon  the  adverse  report  of  the  Committee  on 
Suffrage  on  Mr.  Tucker's  amendment. 

The  President  —  Gentlemen,  hear  the  resolution  of  Mr.  Cookin- 
ham, that  the  Committee  on  Rules  be  directed  to  propose  a  limita- 
tion of  debate  on  the  suffrage  amendment,  proposed  by  Mr.  Tucker, 
which  is  a  special  order  for  this  evening. 

Mr.  Pratt  —  Mr.  President,  I  move  to  amend  by  extending  it  to 
all  debates  in  the  Convention. 


452  REVISED   RECORD.  [Wednesday, 

Mr.  Goodelle  —  I  hope  that  the  amendment  will  not  be  pressed. 
That  can  come  up  some  other  time  as  well. 

Mr.  Pratt  —  In  deference  to  the  wishes  of  the  chairman  of  the 
Suffrage  Committee,  I  will  withdraw  the  amendment. 

The  President  put  the  question  on  Mr.  Cookinham's  resolution, 
and  it  was  determined  in  the  affirmative. 

Mr.  Jacobs  offered  the  following  resolution: 

R.  172. —  Whereas,  The  delegates  to  this  Convention  from  the 
Sixth  Senatorial  District  were  unjustly  deprived  of  their  seats  and 
prevented  from  taking  any  part  in  the  deliberations  of  this  body 
during  the  period  from  May  8,  1894,  to  August  2,  1894,  and 

Whereas,  The  said  delegates  have  made  demands  upon  the 
proper  disbursing  officer  of  this  Convention  for  their  mileage  and 
per  diem  allowance,  as  provided  by  law,  for  such  period,  which  has 
been  refused, 

Now,  therefore,  be  it 

Resolved,  That  the  said  delegates  from  the  Sixth  Senatorial  Dis- 
trict are  entitled  to  the  mileage,  as  provided  by  law,  and  to  the 
per  diem  allowance  of  ten  dollars  per  day  for  every  day  for  the 
period  from  May  8,  1894,  to  and  including  August  2,  1894,  and 
that  the  President  of  this  Convention  be,  and  is  hereby  requested 
to  certify  the  amount  thereof  to  the  Comptroller  for  payment. 

Mr.  Bowers  —  Mr.  President.  I  object  to  the  consideration  of  this 
resolution  to-day  on  the  ground  that  it  will  be  debated. 

The  President  —  It  stands  over,  under  the  rules,  for  to-morrow. 

Mr.  Doty's  resolution  will  now  be  read. 

The  Secretary  read  the  resolution  as  follows: 

R.  173. —  Resolved,  That  the  Secretary  transmit  to  each  county 
clerk  and  the  board  of  supervisors  of  each  county  a  copy  of  Docu- 
ment No.  50,  relating  to  the  cost  of  printing  official  ballots. 

The  President  put  the  question  on  Mr.  Doty's  resolution,  and  it 
was  determined  in  the  affirmative. 

The  President  —  The  Chair  is  of  the  opinion  that  the  constitu- 
tional amendment  asked  to  be  presented  by  Mr.  Green  cannot  be 
received  without  a  motion  in  the  Convention. 

Mr.  A.  H.  Green  —  I  move  that  it  be  received. 

The  President  —  The  Secretary  will  first  read  the  amendment 
offered  by  Mr.  Manley. 

The  Secretary  read  the  title  of  the  proposed  amendment  intro- 
duced by  Mr.  Manley  as  follows: 


August  15.]  CONSTITUTIONAL  CONVENTION.  453 

O.  378. —  "Proposed  constitutional  amendment  to  prohibit  the 
use  of  land  for  cemetery  purposes  in  certain  counties  of  the  State 
without  the  consent  of  local  authorities." 

Mr.  M.  E.  Lewis  —  Will  the  Secretary  kindly  state  what  counties 
are  affected  by  this  proposition? 

The  Secretary  read  the  proposed  amendment,  which  showed  that 
the  counties  of  Westchester,  Kings,  Queens,  Rockland  and  Rich- 
mond were  the  counties  affected. 

The  President  put  the  question  on  permitting  this  amendment  to 
be  received  and  referred  to  the  select  committee,  and  it  was  deter- 
mined in  the  affirmative. 

The  Secretary  then  read  Mr.  A.  H.  Green's  proposed  amendment, 
entitled: 

O.  3/9. —  "  Proposed  constitutional  amendment  to  abolish  the 
office  of  loan  commissioner." 

The  President  put  the  question  on  receiving  this  amendment  and 
referring  it  to  the  select  committee,  and  it  was  determined  in  the 
affirmative. 

The  President  —  Reports  of  committees  are  in  order,  and  chair- 
men of  committees  will  remember  that  to-day  is  the  day  fixed  by 
the  vote  of  last  week  for  each  chairman  to  state  the  condition  of 
business  before  his  committee. 

There  will  be  a  meeting  of  the  Committee  on  Rules  immediately 
in  the  President's  room,  and  the  Second  Vice-President  is  requested 
to  take  the  chair. 

Mr.  Goodelle  —  Mr.  President,  may  I  make  a  motion  at  this 
time?  There  seems  to  have  been  a  little  question  as  to  whether  or 
not  overture  (introductory  No.  194),  the  special  order  which  was 
considered  last  evening  and,  also  on  Thursday  evening,  in  view  of 
the  resolution  passed  on  Thursday  night,  may  have  been  affected. 
I,  therefore,  move  that  the  special  order  which  was  made  a  special 
order  for  last  evening  be  made  a  special  order  for  this  evening. 

The  President  —  The  Chair  understands  that  it  is  a  special  order, 
and  the  only  effect  of  the  adjournment  last  night,  was  to  carry  it 
over.  However,  it  won't  do  any  harm  to  have  another  vote  upon  it. 

The  President  put  the  question  on  the  motion  of  Mr.  Goodelle, 
and  it  was  determined  in  the  affirmative. 

Second  Vice-President  Steele  took  the  chair. 

The  Secretary  called  the  list  of  committees. 

Mr.  Francis  —  Mr.  President,  I  offer  the  report  of  the  Committee 


454  REVISED   RECORD.  [Wednesday, 

on  Preamble  and  Bill  of  Rights  as  to  the  work  of  the  committee 
and  six  separate  reports. 

The  Secretary  read  the  report  of  the  chairman  as  follows : 
All  proposed  constitutional  amendments  referred  to  the  Commit- 
tee on  Preamble  and  Bill  of  Rights  have  been  reported,  except  the 
proposed  amendment  of  Mr.  Tekulsky,  which  is  withheld  by  the 
committee  for  the  purpose  of  considering  amendments  thereto  now 
pending  in  the  committee. 

JOHN  M.  FRANCIS, 

Chairman. 

Mr.  Francis,  from  the  Committee  on  Preamble  and  Bill  of  Rights, 
to  which  was  referred  the  proposed  constitutional  amendment, 
introduced  by  Mr.  Goodelle  (introductory  No.  261),  entitled,  "  Pro- 
posed constitutional  amendment  to  amend  section  6  of  article  I  of 
the  Constitution,  providing  that  in  all  criminal  prosecutions,  the 
party  accused  shall  be  confronted  with  the  witnesses  against  him," 
reported  in  favor  of  the  passage  of  the  same,  which  report  was 
agreed  to,  and  the  proposed  amendment  committed  to  the  Commit- 
tee of  the  Whole. 

Mr.  Francis,  from  the  Committee  on  Preamble  and  Bill  of  Rights, 
to  which  was  referred  the  proposed  constitutional  amendment, 
introduced  by  Mr.  Francis  (introductory  No.  211),  entitled,  "Pro- 
posed constitutional  amendment  to  amend  section  3  of  article  I  of 
the  preamble  and  bill  of  rights  in  regard  to  religious  liberty," 
reported  in  favor  of  the  passage  of  the  same,  with  some  amendments, 
which  report  was  agreed  to,  and  the  proposed  amendment  com- 
mitted to  the  Committee  of  the  Whole. 

Mr.  Francis,  from  the  Committee  on  Preamble  and  Bill  of  Rights, 
introduced: 

O.  380. —  Proposed  constitutional  amendment  amending  the 
phraseology  of  section  6  of  article  i. 

The  President  pro  tern. —  This  proposed  amendment  will  be 
printed  and  take  its  place  upon  general  orders. 

Mr.  Francis,  from  the  Committee  on  Preamble  and  Bill  of  Rights, 
introduced: 

O.  381. —  Proposed  constitutional  amendment,  striking  out  sec- 
tion 17  of  article  i  certain  useless  matter. 

The  President  pro  tern. —  This  proposed  amendment  will  be 
printed  and  take  its  place  upon  general  orders. 

Mr.  Francis,  from  the  Committee  on  Preamble  and  Bill  of  Rights, 


August  15.]  CONSTITUTIONAL  CONTENTION.  455 

to  which  was  referred  the  proposed  constitutional  amendment, 
introduced  by  Mr.  Roche  (introductory  No.  177),  entitled,  "  Pro- 
posed constitutional  amendment  to  amend  the  Constitution,  relative 
to  the  distribution  of  the  powers  of  government,"  reported  in  favor 
of  the  passage  of  the  same,  with  some  amendments,  which  report 
was  agreed  to,  and  the  proposed  amendment  committed  to  the 
Committee  of  the  Whole. 

Mr.  Francis,  from  the  Committee  on  Preamble  and  Bill  of  Rights, 
to  which  was  referred  the  proposed  constitutional  amendment, 
introduced  by  Mr.  Parker  (introductory  No.  327),  entitled,  "  Pro- 
posed constitutional  amendment  to  amend  section  7  of  article  i  of 
the  Constitution,  so  as  to  include  therein  the  right  to  construct  and 
maintain  necessary  drains  and  ditches  for  agricultural  purposes 
across  the  lands  of  others,"  reported  in  favor  of  the  passage  of  the 
same,  which  report  was  agreed  to,  and  the  proposed  amendment 
committed  to  the  Committee  of  the  Whole. 

Mr.  Veeder  —  Mr.  President,  may  I  ask  if  the  chairman  of  the 
Committee  on  Preamble  and  Bill  of  Rights  has  made  any  report, 
favorably  or  adversely,  upon  the  proposition  in  regard  to  gambling. 

The  President  pro  tern. —  The  Chair  will  inform  the  gentleman 
that  he  understood  from  the  report,  as  read  here,  that  there  was  one 
proposition  now  before  the  committee  that  was  held  for  further 
action  by  the  committee,  which  I  suppose  refers  to  the  matter  that 
the  gentleman  inquires  about. 

Mr.  Veeder  —  Then  it  is  not  reported? 

The  President  pro  tern. —  It  is  not  reported ;  as  I  understand  the 
report,  as  read  by  the  Secretary,  that  amendment  is  not  reported  at 
all  this  morning. 

Mr.  Veeder —  May  I  have  that  part  of  the  report  read? 

The  President  pro  tern. —  Yes,  sir;  the  Secretary  will  read  the 
report  again  for  the  gentleman  from  New  York. 

The  Secretary  read  again  the  report  of  the  chairman  of  the  Com- 
mittee on  Preamble  and  Bill  of  Rights. 

The'  President  pro  tern. —  The  Chair  would  ask  the  chairman  of 
the  Committee  on  Legislative  Organization,  Mr.  Becker,  whether 
he  has  a  report  to  make,  according  to  the  resolution  passed  by  the 
Convention  some  days  since. 

Mr.  Becker  —  Mr.  President,  I  have  no  written  report,  but  I  can 
state  briefly  the  status  of  the  business,  if  that  will  be  sufficient. 

The  President  pro  tern. —  Will  the  chairman  please  send  np  a 
written  report? 


456  REVISED  RECORD.  [Wednesday, 

Mr.  Becker  —  With  great  pleasure.  I  may  state  to  the  Chair 
and  to  the  delegates  that  I  thought  that  resolution  was  to  take 
effect  on  the  twenty-first  inst.  I  so  undersood  it,  that  all  reports 
were  to  be  in  on  the  twenty-first,  or  a  statement  of  the  business  at 
that  time.  For  that  reason  I  made  no  — 

The  President  pro  tern. —  The  gentleman  is  correct  in  reference 
to  a  part  of  the  matter,  but  the  resolution  was  that  all  chairmen 
should  report  at  this  time  the  status  of  the  business  before  their 
committees,  for  the  information  of  the  Convention. 

Mr.  Becker  —  I  shall  be  very  glad  to  make  the  report,  and  will 
do  so  inside  of  five  minutes. 

Mr.  Cady  —  Is  the  Chair  confident  that  that  resolution  calls  for 
these  reports  on  the  fifteenth  or  the  sixteenth?  I  am  not  confident 
about  it;  I  ask  for  information. 

The  President  pro  tern. —  It  appears  from  the  Secretary's  desk  that 
the  reports  are  due  on  the  sixteenth.  That  would  be  to-morrow. 
Then  this  will  be  passed  by  until  to-morrow,  which  will  give  the 
gentlemen  ample  time  to  make  their  reports. 

Mr.  Veeder,  from  the  Committee  on  Legisative  Powers  and 
Duties,  to  which  was  referred  the  proposed  amendment  introduced 
by  Mr.  McMillan  (introductory  No.  n),  general  order  No.  3, 
entitled,  "  Proposed  constitutional  amendment  to  amend  section  16 
of  article  3  of  the  Constitution  of  the  State  of  New  York,"  relating 
to  legislation,  reported  in  favor  of  the  passage  of  the  same  with 
some  amendments. 

The  Secretary  read  the  report. 

The  President  pro  tern. —  It  is  referred  to  the  Committee  of  the 
Whole. 

Mr.  Vedder,  from  the  Committee  on  Legislative  Powers  and 
Duties,  to  which  was  referred  the  proposed  amendment,  introduced 
by  Mr.  Nichols  (introductory  No.  352),  entitled,  "  Proposed  constitu- 
tional amendment  to  add  a  new  article  regarding  soldiers  and  sail- 
ors' homes  of  the  State  of  New  York,"  reported  in  favor  of  the 
passage  of  the  same  with  some  amendments.  . 

The  Secretary  read  the  report. 

Mr.  Vedder  —  Mr.  Dean  wishes  to  have  me  state  that  he  dissents 
from  this  report,  and  wishes  to  have  it  so  entered  on  the  Journal. 

The  President  pro  tern. —  The  entry  will  be  so  made. 

Mr.  Vedder,  from  the  Committee  on  Powers  and  Duties  of  the 
Legislature,  to  which  was  referred  the  proposed  amendment,  intro- 
duced by  Mr.  Foote  (introductory  No.  325),  entitled,  "  Proposed 


August  15.]  CONSTITUTIONAL  CONVENTION.  457 

constitutional  amendment  to  amend  section  7  of  article  I,  to  author- 
ize the  Legislature  to  provide  for  the  construction  of  dams  and  res- 
ervoirs for  the  improvement  of  water  powers,  and  to  assess  the 
expense  therefor  on  the  property  benefited  thereby,"  reported  in 
favor  of  the  passage  of  the  same. 
Referred  to  the  Committee  of  the  Whole. 

Mr.  Vedcler  —  With  reference  to  the  proposition  introduced  by 
Mr.  Foote,  I  desire  to  dissent  from  the  report,  and  have  it  entered 
upon  the  Journal. 

The  President  pro  tern. —  The  gentleman  will  be  so  recorded. 

Mr.  Vedder  —  Do  I  understand  from  the  statement  of  the  Chair, 
a  short  time  since,  that  the  reports  from  committees  with  regard 
to  their  work  may  be  made  now? 

The  President  pro  tern. —  I  suppose  they  may  be  made  now. 
They  are  to  be  made,  as  I  understand  it,  on  or  before  the  sixteenth. 
The  Chair  sees  no  objection  to  the  making  of  reports  at  the  present 
time,  if  gentlemen  are  ready  to  report  in  writing. 

Mr.  Vedder  —  Perhaps,  then,  they  better  be  made  to-morrow,  if  it 
is  understood  that  they  are  to  be  made  to-morrow. 

The  President  pro  tern. —  As  the  gentlemen  prefer. 

Mr.  Hawley,  from  the  Committee  on  Corporations,  presented  a 
minority  report  from  members  of  that  committee  dissenting  from  the 
committee's  report  on  the  amendment  (introductory  No.  375,  printed 
No.  395)  as  to  trusts  or  combinations. 

Mr.  Rogers  —  I  call  for  a  reading. 

The  Secretary  read  the  report. 

The  President  pro  tern. —  The  report  will  take  the  ordinary  course. 

Mr.  McDonough,  from  the  Committee  on  State  Prisons  —  I 
desire  to  report,  Mr.  President,  that  our  work  is  substantially 
done 

The  President  pro  tern. —  Will  Mr.  McDonough  please  submit  his 
report  in  writing? 

Mr.  Gilbert,  from  the  Committee  on  Industrial  Interests,  to  which 
was  referred  the  proposed  constitutional  amendment,  introduced  by 
Mr.  Gilbert  (introductory  No.  321),  entitled,  "  Proposed  constitu- 
tional amendment  to  amend  article  3  of  the  Constitution,  by  provid- 
ing for  the  establishment  of  boards  of  arbitration,"  reported  in  favor 
of  the  passage  of  the  same  with  some  amendments. 

The  Secretary  read  the  report  and  it  was  referred  to  the  Commit- 
tee of  the  Whole. 


458  REVISED   RECORD.  [Wednesday, 

Mr.  Hawley  —  I  wish  to  make  an  inquiry.  1  understand  the 
Vice-President  to  say  that  the  chairmen  of  committees  were 
expected  to  report  in  writing  to-morrow.  I  made  inquiry  of  the 
President  of  the  Convention  last  evening,  as  to  what  was  expected 
in  that  behalf,  and  he  said  that  it  was  only  desired  that  the  chair- 
men of  committees  should  make  brief  verbal  statements  for  the 
information  of  the  Convention.  I  had,  for  myself,  prepared  the 
draft  of  a  written  report,  but  I  think  that  the  chairmen  of  committees 
should  all  do  the  same  thing,  and  I  do  not  know  why  it  is  necessary 
for  us  to  encumber  the  document  room  of  the  Convention  with 
thirty  written  reports,  when  all  that  is  desired  is  that  the  Convention 
should  have  a  general  knowledge  of  the  state  of  business  before  the 
respective  committees;  and  I,  therefore,  in  order  that  the  question 
may  be  settled  —  and  I  do  not  care  which  way  it  is  settled  —  move 
that  the  chairmen  of  committees  report  to-morrow  morning,  verb- 
ally, as  to  the  state  of  business  before  their  respective  committees. 

The  President  pro  tern,  put  the  question  on  the  motion  of  Mr. 
Hawley,  and  it  was  determined  in  the  affirmative. 

Mr.  A.  H.  Green,  from  the  Special  Committee  on  Transfer  of 
Land  Titles,  reported  a  substitute  for  the  amendment  heretofore 
proposed  by  said  committee  (Document  27). 

The  Secretary  read  the  substitute. 

The  President  pro  tern. —  The  Chair  sees  no  other  mode  of  dis- 
posing of  this  amendment  than  to  treat  it  as  a  new  proposed  con- 
stitutional amendment.  Therefore,  it  will  have  its  first  and  second 
reading  and  be  printed. 

The  substitute  then  received  its  second  reading  by  title,  and  was 
referred  to  the  Committee  of  the  Whole,  as  O.  382,  p.  421,  proposed 
constitutional  amendment  as  to  transfer  of  land  titles. 

Mr.  A.  H.  Green  —  I  move,  Mr.  President,  that  the  special  report 
retain  its  place  on  general  orders,  by  the  direction  of  the  Convention. 

The  President  pro  tern. —  It  is  so  ordered  unless  there  is  objection. 
It  retains  its  place  on  general  orders. 

Mr.  Francis  —  Mr.  President,  I  ask  unanimous  consent  to  pre- 
sent a  petition  which  I  omitted  to  send  up  at  the  proper  time. 

The  President  pro  tern. —  If  there  is  no  objection  the  petition  will 
be  received. 

The  Secretary  read  the  petition  offered  by  Mr.  Francis,  relating 
to  primary  elections. 

The  President  pro  tern. —  The  petition  is  referred  to  the  Commit- 
tee on  Powers  and  Duties  of  the  Legislature. 


August  15.]  CONSTITUTIONAL  CONVENTION.  459 

Mr.  Augustus  Frank  —  I  would  also  like  to  present  a  brief 
petition. 

The  Secretary  read  the  petition  presented  by  Mr.  Frank,  from 
the  citizens  of  Warsaw,  N.  Y.,  favoring  an  amendment  to  the  Con- 
stitution making  persons  who  sell  intoxicating  liquors,  and  the  per- 
sons owning  the  premises  upon  which  the  liquor  is  sold,  liable  for 
any  damages  or  injuries  caused  to  the  purchaser. 

The  President  pro  tern. — What  committee  would  you  desire  to 
have  that  referred  to? 

Mr.  Frank  —  I  do  not  know,  sir,  what  committee  it  ought  to 
go  to. 

The  President  pro  tern.  —  It  will  be  referred  to  the  Committee  on 
Powers  and  Duties  of  the  Legislature. 

Mr.  Doty  —  I  have  a  similar  memorial  from  the  citizens  of 
Livingston  county. 

The  Secretary  read  the  memorial  presented  by  Mr.  Doty,  relating 
to  civil  damage  provision  in  the  Constitution. 

The  President  pro  tern. —  That  will  have  the  same  reference  as  the 
former  petition.  The  special  order  for  this  morning  is  the  proposed 
constitutional  amendment  (No.  81)  to  amend  section  9  of  article  3 
of  the  Constitution,  in  regard  to  two-thirds  bills,  reported  adversely. 
The  question  is  on  agreeing  with  the  report  of  the  committee. 

Mr.  Goodelle  —  Mr.  President,  I  understand  the  proposer  of  ihat 
amendment  desires  to  discuss  it,  and  as  it  is  a  matter  which  affects 
the  locality  from  which  I  come,  I  desire  to  be  present  and  perhaps  say 
something  at  the  time  of  the  discussion.  I  was  not  aware  till  this 
morning  that  this  was  made  a  special  order  for  to-day.  I  have  talked 
with  Mr.  Barrow,  from  Onondaga,  and  I  think  he  consents  that 
this  matter  may  stand  over  until  one  week  from  to-day;  and  I  make 
a  motion,  therefore,  that  it  stand  over  and  be  made  a  special  order 
for  a  week  from  this  morning. 

The  President  pro  tern. —  This  motion,  being  for  the  postpone- 
ment of  a  special  order,  requires  a  two-thirds  vote. 

Mr.  Barrow  —  Mr.  Goodelle,  my  colleague  from  Onondaga,  is 
entirely  correct,  and  at  his  earnest  solicitation  I  have  consented  to 
the  postponement  of  this  special  order  for  one  week,  until  next 
Wednesday  morning. 

The  President  pro  tern,  put  the  question  on  the  motion  of  Mr. 
Goodelle,  and  it  was  determined  in  the  affirmative. 

Mr.  Root  —  I  was  absent  from  the  chamber  during  the  call  of 


460  REVISED  RECORD.  [Wednesday, 

the  committees,  and  I  ask  consent  to  submit  a  report  of  the  Judici- 
ary Committee. 

Mr.  Durfee  —  Air.  President,  in  view  of  the  length  of  that  docu- 
ment and  its  importance,  which  will  undoubtedly  make  it  neces- 
sary and  proper  that  every  member  of  the  Convention  should 
have  it  before  him,  I  move  that  the  reading-  be  dispensed  with  and 
that  it  be  printed  and  placed  upon  the  desks  of  the  members. 

The  question  on  the  motion  of  Mr.  Durfee  was  put,  and  it  was 
determined  in  the  affirmative. 

The  President  pro  tern. —  The  Chair  would  suggest  to  Mr.  Root 
that  he  is  informed  that  there  is  an  amendment  attached  to  this 
report.  If  so,  the  question  will  come  before  the  Convention  as 
to  whether  that  amendment  should  not  be  read  and  go  on  general 
orders. 

Mr.  Root  —  I  supposed  that  as  a  matter  of  course,  under  the 
rule,  this  will  go  to  general  orders.  We  report  a  judiciary  article,  a 
proposed  amendment  to  the  Constitution. 

The  President  pro  tern. —  It  will  go  upon  general  orders. 

O.  383,  P.  422. —  Proposed  constitutional  amendment  to  amend 
article  6  of  the  Constitution,  relating  to  the  judiciary. 

Mr.  Vedder  —  Under  the  standing  rule  of  the  Convention,  all 
adverse  reports  which  may  have  been  made  by  a  committee,  as  'I 
understand  it,  are  to  be  made  in  the  Convention  upon  the  request 
of  the  introducer  of  the  proposition. 

Mr.  Root  —  Will  the  gentleman  give  way  for  a  moment? 

Mr.  Vedder  —  Certainly. 

Mr.  Root  —  Mr.  President,  I  suppose  that  the  proposed  amend- 
ment to  the  Constitution  just  reported  by  the  Judiciary  Committee 
will  be  printed  and  go  to  the  Committee  of  the  Whole,  under  the 
rule. 

The  President  pro  tern. —  So  the  Chair  understands  it. 

Mr.  Root  —  It  is  accompanied  by  an  explanatory  report,  which 
will  not  in  the  nature  of  things  be  printed  in  bill  form,  and  if  I  am 
in  order  I  move  that  that  be  printed  as  a  Convention  document. 

The  President  pro  tern,  put  the  question  on  the  motion  of  Mr. 
Root,  and  it  was  determined  in  the  affirmative. 

Mr.  Root  —  I  should  very  much  like,  if  the  members  of  the  Con- 
vention do  not  think  that  it  is  a  waste  of  time,  that  before  they  take 
up  the  examination  of  the  text  of  the  proposed  judiciary  article,  they 
should  hear  the  explanation  which  is  contained  in  that  report.  It 


August  15.]  CONSTITUTIONAL  CONVENTION.  461 

is  not  very  long,  and  I  should  think  that  it  would  not  be  a  waste  of 
time  if  it  were  read. 

Mr.  McClure  —  Now? 

Mr.  Root  —  Now.     I  move  that  it  be  read. 

The  President  pro  tern. —  If  there  is  no  objection  it  will  be  read. 

The  Secretary  then  read  the  explanatory  statement  of  the  com- 
mittee accompanying  the  text  of  the  proposed  judiciary  article: 

DOCUMENT  No.  53. 

EXPLANATORY     STATEMENT     OF     THE     JUDICIARY     COMMITTEE 
RELATIVE  TO  THE  PROPOSED  JUDICIARY  ARTICLE. 

To  the  Convention: 

Your  Committee  on  Judiciary  report  herewith  a  new  judiciary 
article,  and  recommend  its  adoption. 

The  principal  changes  proposed  are  the  following: 

I.  The  nine  General  Terms  which  now  exist,  five  in  the  Supreme 
Court  and  four  in  the  Superior  City  Courts,  are  to  be  abolished. 
The  State  is  to  be  divided  into  four  departments.  In  each  depart- 
ment an  appellate  tribunal  is  to  be  constituted  of  five  justices 
selected  by  the  Governor  from  all  the  justices  elected  to  the 
Supreme  Court.  The  name  "  Appellate  Division  of  the  Supreme 
Court "  is  adopted  in  place  of  the  now  meaningless  expression 
"  General  Term."  All  appeals,  except  in  capital  cases,  are,  in  the 
first  instance,  to  be  to  the  Appellate  Division. 

We  propose  to  make  this  tribunal  a  more  efficient  and  satisfac- 
tory court  of  review  than  the  old  General  Term. 

(c.)  By  making  its  judgments  final  in  a  much  wider  range  of 
questions,  through  limitations  imposed  upon  the  jurisdiction  of  the 
Court  of  Appeals  and  upon  appeals  to  that  court. 

(&.)  By  giving  it  stability  and  independence  through  the  estab- 
lishment of  fixed  terms  for  its  members  and  power  to  control  its 
own  sessions  and  appoint  its  own  clerk  and  designate  the  place 
of  his  office. 

(c.)  By  making  it  large  enough  to  insure  full  discussion  and 
the  correction  of  individual  opinions  by  the  process  of  reaching  a 
concensus  of  opinion. 

(rf.)  By  relieving  its  members  from  all  other  duties,  so  that  there 
shall  be  the  fullest  opportunity  for  consultation  and  deliberation, 
undisturbed  by  the  demands  of  Circuit  of  Special  Term  assignments, 
and  so  that  no  litigant  shall  be  obliged  to  argue  his  appeal  before 
a  court  of  which  the  judge  from  whom  he  appeals  is  a  member. 


462  REVISED  RECORD.  [Wednesday, 

II.  The  Court  of  Appeals  is  to  be  enlarged  to  nine,  the  highest 
number  with  which  the  unity  of  the  court  and  its  consistent  declara- 
tion and  development  of  the  law  can,  in  our  opinion,  be  maintained! 

III.  The  Court  of  Appeals  is  to  be  strictly  limited  to  its  proper 
province  of  reviewing  questions  of  law  (except  in  capital  cases), 
leaving  the  judgments  of  the  Appellate  Division  final  upon  all  ques- 
tions of  fact. 

IV.  The  right  of  appeal  to  the  Court  of  Appeals  is  to  be  limited 
to  final  judgments  and  orders,  leaving  the  decision  of  the  Appel- 
late Division  final  upon  all  matters  of  interlocutory  practice  and 
procedure,  which  do  not  enter  into  the  final  judgment  as  affecting 
substantial  rights. 

V.  The  provision  for  a  Second  Division  of  the  Court  of  Appeals 
is  abrogated. 

VI.  The  Superior  City  Courts  of  New  York,  Brooklyn  and  Buf- 
falo are  to  be  consolidated  with  the  Supreme  Court  with  which 
they   now  have  equal  jurisdiction   within   their  territorial   limits. 
The  judges  of  those  courts  are  to  become  justices  of  the  Supreme 
Court,  but  the  service  of  the  present  incumbents  is  to  be  confined 
to  the  counties  by  the  people  of  which  they  were  elected,  and  their 
salaries  are  to  be  paid  by  those  counties.    Their  separate  clerks' 
offices,  their  needless  multiplication  of  judicial  machinery,  and  their 
varied  rules  of  practice  are  to  be  done  away  with. 

VII.  The  number  of  Supreme  Court  justices  is  to  be  increased 
by  the  addition  of  twelve.     This  number  is  deemed  sufficient  to 
permit   the    entire   withdrawal    of   the   justices    of   the    Appellate 
Division  from  trial  work,  and,  with  the  other  changes  proposed, 
to  relieve  the  existing  delays  in  bringing  causes  to  trial.     The 
addition  will  not,  however,  make  the  total  number  of  justices  so 
great  in  proportion  to  the  population  of  the  State  as  it  was  after 
the  last  increase  by  the  constitutional   amendment  of  1882;  the 
saving  by  abolishing  the  separate  clerks'  offices  of  the  Superior 
City  Courts,  and  judicial  pensions,  will  more  than  pay  for  this  addi- 
tional expense. 

VIII.  Circuit  Courts  and  Courts  of  Oyer  and  Terminer  are 
abolished  and  all  their  jurisdiction  is  conferred  upon  the  Supreme 
Court,  by  whose  justices  it  is,  in  fact,  now  exercised.     Since  side 
justices  were  dispensed  with,  the  separate  existence  of  these  courts 
has  been  useless,  and  the  continuance  of  the  form  and  name  without 
the  substance  merely  mystifies  laymen  and  embarrasses  lawyers  and 
law-makers. 

IX.  Courts  of  Sessions  are  abolished,  and  their  jurisdiction  is 
conferred  upon  the  County  Courts.    This  dispenses  with  the  side 


August  15.]  CONSTITUTIONAL  CONVENTION.  463 

justices,  who  have  long  been  superfluous  members  of  Courts  of  Ses- 
sions, and  as  without  them  the  county  judge  would  preside  alone 
in  the  Court  of  Sessions,  there  seems  to  be  no  reason  for  preserving 
the  form  and  name  of  a  separate  court. 

X.  The  jurisdiction  of  County  Courts  is  enlarged  to  include 
actions  against  residents  of  the  county  for  the  recovery  of  money 
only  to  the  amount  of  $2,000,  and  the  Legislature  is  prohibited 
from  enlarging  it  further  in  such  cases.     County  judges  and  sur- 
rogates in  counties  having  a  population  exceeding  100,000  are  pro- 
hibited from  practicing  law,  and  the  Legislature  is  authorized  to 
impose  a  similar  prohibition  in  other  counties. 

XI.  Provision  has  been  made  for  preventing  a  repetition  of  the 
process  by  which,  through  constantly  enlarging  the  jurisdiction  of 
local  and  inferior  courts,  local  rivals  of  the  Supreme  Court  are  built 
up.     The  trial  of  small  causes  is  just  as  important  to  the  people  who 
have  them  as  the  trial  of  large  causes  is  to  others.     When  a  court 
is  organized  for  the  purpose  of  trying  small  causes,  enlargement  of 
its  jurisdiction   necessarily   withdraws   its  attention,   interest   and 
efforts  from  its  original  field  of  work.     Therefore,  while  we  leave 
power  in  the  Legislature  to  establish  inferior  local  courts,  we  pro- 
vide that  they  shall  not  be  courts  of  record,  and  that  the  Legislature 
shall  not  confer  upon  them  any  equity  jurisdiction  or  any  greater 
jurisdiction  in  other  respects  than  is  conferred  upon  County  Courts. 

XII.  The  provision  for  judicial  pensions,  or  retired  pay,  is  abro- 
gated, saving  only  rights  acquired  under  the  existing  Constitution. 

********** 

The  principal  evils  which  we  have  sought  to  remedy  in  our  treat- 
ment of  the  courts  of  general,  original  and  appellate  jurisdiction  are: 

First.     The  delay  in  getting  causes  to  trial  in  the  first  instance  — 
a  difficulty  which  exists  chiefly  in  the  large  cities;  and, 

Second.  The  delay  in  final  disposition  which  results  from  the 
overcrowding  of  the  Court  of  Appeals  calendar. 

The  first  difficulty,  we  are  satisfied,  will  be  fully  met  by  the 
moderate  increase  of  judicial  force  which  we  recommend,  and  by  the 
economy  of  judicial  force  which  we  anticipate  from  the  consolida- 
tion of  courts  in  the  large  cities. 

The  second  difficulty  we  have  treated  with  the  following  views: 

Every  State  is  bound  to  give  to  its  citizens  one  trial  of  their 
controversies  and  one  review  of  the  rulings  and  results  of  the  trial 
by  a  competent  and  impartial  appellate  tribunal.  When  this  has 
been  done,  the  duty  of  the  State  to  the  particular  litigants  involved 
in  any  case  is  fully  performed.  There  is  no  consideration,  either  of 


464  REVISED  RECORD.  [Wednesday, 

public  duty  or  of  the  private  interests  involved  in  litigation,  which 
requires  a  second  appeal  and  a  second  review. 

The  only  adequate  reason  for  allowing  two  successive  appeals 
in  this  State  to  review  the  same  judgment  is  to  be  found  in  the 
fact  that  the  volume  of  business  is  so  great  as  to  render  it  impossible 
for  any  one  appellate  tribunal,  or  any  two,  or  possibly  any  three 
such  tribunals,  to  properly  review  all  the  decisions  of  courts  of  first 
instance.  The  review  to  which  litigants  are  entitled  must,  therefore, 
be  furnished  by  at  least  three  or  four  different  tribunals ;  and  to  their 
conclusions  another  conclusion  of  the  highest  importance  applies. 
Three  or  four  separate  tribunals,  uncontrolled  by  higher  authority, 
can  never  settle  the  law.  Their  opinions  are  certain  to  vary,  differ 
and  conflict.  The  public  interests  demand  that  the  law  should  be 
settled;  that  it  should  be  the  same  for  the  whole  State;  that  it  should 
be  a  consistent  and  harmonious  system;  that  it  should  be  declared 
clearly  and  authoritatively  by  some  supreme  power,  in  order  not 
merely  that  litigants  may  have  their  right,  but  that  the  whole  people 
may  know  what  is  the  law,  by  which  their  contracts  and  conduct 
shall  be  regulated,  and  by  the  observance  of  which  they  may,  if 
possible,  keep  out  of  litigation. 

It  is  this  necessity  alone  which  justifies  the  existence  of  a  Court 
of  Appeals  superior  to  the  appellate  tribunals  which  first  review 
the  decision  of  trial  courts.  But  for  this  the  whole  difficulty  could 
readily  be  solved  by  abolishing  the  Court  of  Appeals,  allowing  only 
one  appeal,  and  constituting  four  strong  appellate  courts  whose 
judgments  should  be  final. 

The  occasion  which  gives  rise  to  a  second  single  appellate  tri- 
bunal marks  the  limit  of  its  proper  and  necessary  function  to  settle 
and  make  certain  the  law,  not  only  for  litigants,  but  for  all  the 
people.  Whatever  limitations  upon  its  jurisdiction  or  the  scope  of 
its  action,  and  whatever  provisions  regarding  its  constitution  and 
procedure  are  consistent  with  the  full  and  effective  exercise  of  that 
function,  are  permissible.  Whatever  interferes  with  the  exercise 
of  that  function  should  be,  by  all  means,  avoided. 

The  theory  of  the  judiciary  article  of  1867,  and  of  the  legisla- 
tion under  it,  was  that  the  review  afforded  by  the  various  General 
Terms  would  sift  out  appeals  and  would  bring  so  many  litigations 
to  an  end  that  the  residue  which  went  on  to  the  higher  tribunal 
for  a  second  review  would  be  fully  within  its  power  to  hear  and 
determine  without  undue  delay.  This  was,  at  first,  the  case;  and  so 
long  as  it  was  the  case,  it  was  of  no  consequence  that  many  ques- 
tions of  fact,  in  which  only  the  particular  litigants  were  interested, 


August  15.]  CONSTITUTIONAL  CONVENTION.  465 

and  many  questions  of  mere  interlocutory  practice  and  procedure 
were  allowed  to  come  before  the  Court  of  Appeals. 

The  review  by  the  General  Terms,  however,  no  longer  effectively 
accomplishes  the  desired  result.  Want  of  finality  in  their  judg- 
ments decreases  the  respect  for  tlreir  authority  and  their  sense  of 
responsibility.  The  small  number  of  the  justices  composing  them, 
and  the  frequency  with  which  one  of  even  that  small  number  is 
obliged  to  retire  because  he  is  the  very  judge  appealed  from, 
reduces  to  a  minimum  the  possibility  of  consultation,  discussion 
and  the  correction  of  one  mind  by  another,  which  is  essential  to 
satisfactory  conclusions  by  an  appellate  court.  The  pressure  of 
other  judicial  engagements  upon  the  members  of  the  court,  in  many 
cases  shortening  their  sessions  and  preventing  the  full  hearing  of 
counsel,  and  frequently  separating  the  justices  with  their  work 
unfinished,  tends  in  the  same  direction.  In  the  meantime  the 
disposition  to  take  a  second  appeal  grows,  and  the  Legislature 
constantly  enlarges  the  opportunity.  The  result  is  that  the  Court 
of  Appeals  is  overloaded  with  work,  a  very  considerable  portion 
of  which  is  wholly  outside  of  its  proper  and  necessary  function  of 
settling  the  law. 

Our  purpose  is  to  draw  the  line  distinctly  around  the  questions 
which  the  Court  of  Appeals,  and  that  court  alone,  ought  to  deter- 
mine finally;  to  leave  all  other  questions  to  the  court  first  reviewing 
the  cause,  and  to  make  that  a  court  fully  competent  to  protect  satis- 
factorily every  right  of  a  litigant. 

'  For  the  purpose  of  effectively  limiting  the  Court  of  Appeals  to 
questions  of  law,  we  have  added  to  the  general  statement  of  that 
limitation  a  clause  specifically  precluding  review  of  an  unanimous 
decision  of  the  Appellate  Division,  that  there  is  evidence  to  sustain 
a  finding  of  fact  or  a  verdi'ct  not  directed  by  the  court. 

This  closes  the  door  through  which,  under  sections  993  and  1037 
of  the  Code,  the  whole  question  of  fact  in  many  cases  is  brought 
before  the  Court  of  Appeals.  It  does  not  affect  cases  of  nonsuit,  or 
of  verdicts  directed,  or  of  reversals  by  the  Appellate  Division,  or 
cases  where  there  is  a  dissent  in  that  court. 

It  does  require  that  when  a  trial  court  or  jury  has  decided  that 
a  fact  is  proved,  and  five  judges  in  the  Appellate  Division  have 
unanimously  held  that  it  is  proved,  controversy  about  that  fact 
shall  end;  and  that  any  question  of  law  mixed  with  that  fact  shall 
be  separately  raised  and  presented,  in  order  to  be  reviewed  by  the 
Court  of  Appeals. 

30 


466  REVISED   RECORD.  [Wednesday, 

We  believe  this  provision  to  be  precise,  logical,  necessary  to  give 
effect  to  the  main  limitation,  and  just. 

In  reaching  our  conclusion  we  have  considered  the  following 
alternatives  as  possible  expedients  to  secure  more  speedy  final 
review : 

1st.  We  would  enlarge  the  Court  of  Appeals  so  that  it  would 
sit  in  two  divisions,  or  so  that  only  a  little  more  than  half  of  the 
court  being  present  at  once,  the  members  could  rotate  in  their 
services.  Either  of  these  expedients  would,  doubtless,  secure  the 
disposition  of  more  causes,  but  either  of  them  would  frustrate  the 
soje  purpose  for  which  the  court  exists. 

The  unity  of  the  court,  the  consistent  harmony  of  its  views  upon 
the  fundamental  questions  which  underlie  the  determination  of 
causes,  the  certainty  of  the  law,  the  authority  of  its  opinions  now 
respected  throughout  the  Union,  and  just  cause  for  pride,  by  every 
member  of  the  State  —  all  these  would  disappear,  and  in  their  place 
would  be  the  varying  utterances  of  a  divided  or  fluctuating  body, 
less  valued  and  less  respected  than  the  opinions  of  the  courts  which 
it  reviews. 

2.  We  could  limit  the  jurisdiction  of  the  Court  of  Appeals  by 
fixing  a  minimum  amount,  and  permitting  no  appeal  in  any  case 
not  involving  that  amount.  We  deem  this  decidedly  objectionable. 
Important  questions  of  law  arise  in  small  cases,  as  well  as  in  large 
ones.  A  great  majority  of  the  people  have  only  small  cases  to  be 
determined,  and  this  should  be  their  court,  if  they  choose  to  avail 
themselves  of  it,  as  well  as  the  court  of  their  wealthy  fellow-citizens. 

On  the  contrary,  we  have  thought  it  wise  to  prohibit  the  Legis- 
lature from  ever  making  the  right  of  appeal  to  the  Court  of  Appeals 
depend  upon  the  amount  involved. 

3d.  We  could  limit  appeals  to  specified  classes  of  causes,  as 
the  Judiciary  Commission  of  1890  proposed  to  do,  and  as  the 
Federal  Circuit  Court  of  Appeals  Act  has  done.  But  this  is  com- 
plicated and  uncertain.  Human  foresight  could  hardly  prevent  mis- 
takes in  enumeration  and  definition  which  would  require 
amendment ;  and  while  such  an  attempt  may  do  very  well  in  an  act 
of  Congress,  which  can  be  revised  every  year,  it  is  exceedingly 
unsafe  to  attempt  in  a  Constitution  which  is  to  stand  for  twenty 
years.  There  are,  moreover,  two  substantial  objections  to  this 
course.  One  is,  that  there  is  an  element  of  unfairness  toward  those 
citizens  who  are  interested  in  the  particular  classes  of  cases  excluded 
from  the  numeration;  and  the  other  is,  that  similar  questions  of 
law  arise  in  different  classes  of  cases,  so  that  there  would  be  differ- 
ent courts  of  last  resort  passing  on  the  same  questions. 


August  15.]  CONSTITUTIONAL  CONVENTION.  467 

4th.  There  is  the  present  provision  for  a  Second  Division.  This 
has  some  advantages,  but  they  are  much  more  than  counter- 
balanced. Relief  in  this  way  necessarily  involves  great  delay  and 
injustice,  while  a  sufficient  number  of  causes  are  accumulated  upon 
the  calendar  of  the  Court  of  Appeals  to  justify  a  Second  Division. 
It  means  merely  to  allow  an  evil  to  grow  to  such  proportions  from 
time  to  time  that  extraordinary  measures  are  necessary  for  relief. 
It  has  in  it  no  element  of  protection.  When  resorted  to,  it  deranges 
the  work  of  the  Supreme  Court,  and  causes  great  annoyance  and 
inconvenience  by  the  withdrawal  of  the  justices  of  that  court  from 
the  fields  in  which  their  services  are  needed. 

5th.  There  remains  the  plan  which  we  propose.  We  are  of  the 
opinion  that  the  new  appellate  courts  will  be  more  efficient;  that 
their  opinions  will  be  more  highly  respected;  that  their  judgments 
will  be  less  frequently  reversed;  and  that,  for  all  these  reasons,  there 
will  be  fewer  appeals  from  them  to  the  Court  of  Appeals  than  there 
.are  from  the  existing  General  Terms.  We  are  also  satisfied  that 
the  limitations  upon  the  jurisdiction  of  the  Court  of  Appeals  and 
the  right  to  appeal  thereto  will  further  very  largely  reduce  the 
number  of  appeals  to  that  court;  and  that  the  increase  in  the  num- 
ber of  judges  of  the  Court  of  Appeals  will  slightly  increase  the 
working  power  of  the  court.  We  are  confident  that,  under  the 
operation  of  all  these  causes,  the  court  will  be  able  to  keep  pace 
with  the  demands  upon  it. 

We  have  adopted  and  included  in  the  article  reported  portions 
of  the  following  proposed  constitutional  amendments: 

No.      5.  Introduced  by  Mr.  Dickey 

No.    33.  Introduced  by  Mr.  Lauterbach. 

No.    41.  Introduced  by  Mr.  Maybee. 

No.    42.  Introduced  by  Mr.  Moore. 

No.    66.  Introduced  by  Mr.  Roche. 

No.  101.  Introduced  by  Mr.  Moore. 

No.  128.  Introduced  by  Mr.  Woodward. 

No.  164.  Introduced  by  Mr.  Marshall. 

No.  183.  Introduced  by  Mr.  Marshall. 

No.  172.  Introduced  by  Mr.  Lincoln. 

No.  179.  Introduced  by  Mr.  McLaughlin. 

No.  181.  Introduced  by  Mr.  McArthur. 

No.  238.  Introduced  by  Mr.  Roche. 

No.  249.  Introduced  by  Mr.  Lester. 

No.  268.  Introduced  by  Mr.  Parmenter. 

No.  260.  Introduced  by  Mr.  A.  B.  Steele. 

No.  273.  Introduced  by  Mr.  Nelson  Smith. 


468  REVISED   RECORD.  [Wednesday, 

No.  279.  Introduced  by  Mr.  Dickey. 

No.  227.  Introduced  by  Mr.  Carter. 

No.  338.  Introduced  by  Mr.  Vedder. 

We  beg  to  acknowledge  the  very  valuable  suggestions,  explana- 
tions and  information  received  from  the  gentlemen  who  introduced 
these  and  many  other  proposed  amendments  to  the  judiciary 
article. 

Respectfully  submitted, 

ELIHU  ROOT, 

Chairman. 

Mr.  Vedder  —  This,  Mr.  President,  is  one  of  the  most  important 
proposed  amendments  which  has  been  before  the  Convention  up  to 
this  time,  or  which  will  come  before  the  Convention  during  its 
session.  The  highest  function  of  government  is  to  make  law;  the 
next  highest  is  to  pronounce  judgment  upon  the  law.  After  hear- 
ing the  report  of  the  committee  read,  it  is  obvious  to  everyone  that 
not  a  slight  change  has  been  made,  but  a  radical  change,  in  which 
every  citizen  of  the  State  of  New  York  is  deeply  interested.  The 
people  of  the  State  ought  to  know  precisely  what  these  proposed 
amendments  are.  The  newspapers  of  the  State,  everyone  of  them, 
ought  to  publish  the  amendments  themselves,  and  the  report  of  this 
committee.  For  the  purpose,  therefore,  of  enabling  all  the  papers 
and  all  the  lawyers  and  all  the  people  of  the  State  to  know  officially, 
as  it  were,  what  the  proposition  is,  I  move  that  at  least  2,000  —  I 
will  put  it  2,000  —  copies  of  the  report  and  the  proposed  amend- 
ments be  printed  for  the  use  of  this  Convention. 

Several  members  —  Make  it  2,500. 

Mr.  Vedder  —  I  will  accept  the  amendment  of  2,500.  Perhaps 
that  is  too  small. 

Mr.  Towns  —  Make  it  3,000. 

Mr.  Vedder  —  Well,  3,000  would  only  give  each  member  about 
eighteen  or  twenty.  I  will  say  3,000. 

Mr.  Maybee  —  I  move  to  amend  by  substituting  5,000. 

Mr.  Vedder  —  A  very  practical  printer,  since  the  amendment  was 
suggested  of  5,000,  says  that  when  2,000  are  printed  the  cost  of 
the  other  3,000  is  exceedingly  slight.  If  that  is  so,  let  us  have  the 
5,000.  We  cannot  have  too  much  of  this,  and  the  people  cannot 
have  too  much  knowledge  of  what  it  is  proposed  to  do  in  this 
behalf. 

Mr.  Alvord  —  Mr.  President,  all  T  have  to  say  in  this  regard  is 
that  the  way  the  lawyers  are  going  on  at  present,  in  adding  to  our 


August  15.]  CONSTITUTIONAL  CONVENTION.  469 

printing  account  in  this  Convention,  they  will  bankrupt  the  State 
and  leave  nothing  to  quarrel  over  among  themselves  before  the 
courts.  I  trust,  therefore,  that  no  such  amount  as  5,000  will  be 
printed.  If  it  is  so  important  an  amendment  as  stated  by  the  gentle- 
man from  Cattaraugus,  the  newspapers  will  print  it  as  a  matter  of 
course.  They  will  not  hesitate  in  that  regard,  and  the  distribution 
of  it  through  the  papers  of  the  State  will  cost,  so  far  as  the  people 
of  the  State  of  New  York  is  concerned,  but  a  small  amount  of 
money.  I  trust,  therefore,  that  the  original  proposition,  made  by 
the  gentleman  from  Cattaraugus  of  2,000,  will  be  considered,  after 
members  reflect  a  little,  entirely  sufficient  for  the  occasion. 

Mr.  Dean  —  Mr.  President,  I  rise  to  a  point  of  order.  Under 
rule  51  this  must,  of  necessity,  go  to  the  Committee  on  Printing. 

Mr.  Hamlin  —  If  it  is  necessary  that  this  should  go  to  the  Com- 
mittee on  Printing,  of  course,  I  do  not  object.  It  seems  as  if  it 
might  just  as  well  be  determined  now,  as  immediate  circulation  is 
desired.  What  I  was  going  to  suggest,  however,  was  in  the  interest 
of  economy  —  that,  I  think,  perhaps,  2,000  copies  better  be  printed 
in  the  first  instance,  and  then,  if  there  is  necessity  for  3,000  more,  it 
will  be  a  very  easy  matter,  as  the  types  are  kept  up,  as  I  understand. 
So  that,  if  ultimately  it  should  be  desirable  to  have  5,000  copies  or 
3,000  copies  additional,  there  would  be  no  difficulty  in  obtaining 
them.  I  ask,  Mr.  Chairman,  unanimous  consent  of  the  Convention 
to  suspend  the  rule  and  to  pass  this  motion. 

The  President  pro  tent- —  Unanimous  consent  is  asked  by  Mr. 
Hamlin  that  the  Convention  shall  suspend  the  rule  and  that  this 
resolution,  instead  of  being  referred,  as,  of  course,  to  the  Com- 
mittee on  Printing,  may  be  acted  on  now  by  the  Convention.  Are 
there  any  objections?  There  being  none,  it  is  so  ordered  by  the 
Convention.  The  Chair  would  ask  Mr.  Vedder  if  he  accepted  all 
the  amendments  as  they  were  offered? 

Mr.  Vedder  — I  did. 

The  President  pro  tern. —  The  Chair  failed  to  understand  whether 
there  were  any  further  amendments  made  to  this  resolution,  in 
reference  to  the  printing  of  5,000  copies  of  this  report.  If  there  are 
no  further  amendments,  the  question  now  before  the  Convention 
is  upon  adopting  Mr.  Vedder's  motion  that  5,000  copies  of  these 
reports  and  the  amendments  be  printed  for  distribution  throughout 
the  State. 

The  President  pro  tern,  then  put  the  question,  as  stated,  and  it 
was  determined  in  the  affirmative. 

Mr.  McMillan  —  I  have  been  authorized  bv  the  Committee  on 


470  REVISED  RECORD.  [Wednesday, 

Rules  to  make  the  following  report,  in  reference  to  the  limitation 
of  time  on  the  suffrage  debate. 

The  Secretary  read  the  following  report  from  the  Committee  on 
Rules: 

"  Resolved,  That  the  limit  on  debate  shall  be  three  hours.  The 
Convention  shall  sit  from  three  to  five  o'clock  this  day,  and  again 
at  8  P.  M.  The  time  from  three  to  three-thirty  shall  be  given 
to  those  sustaining  the  adverse  report;  the  time  from  three-thirty 
to  five  shall  be  given  to  those  opposing  the  report,  and  the  time 
from  eight  to  nine  shall  be  given  to  those  sustaining  the  report; 
and  that  the  vote  be  taken  at  nine  o'clock." 

Mr.  McMillan  —  Mr.  President,  I  desire  to  state  to  the  Conven- 
tion that  the  chairman  of  the  Suffrage  Committee  (Mr.  Goodelle), 
and  also  the  leader  of  those  opposed  (Mr.  Lauterbach),  were  before 
the  committee  and  agreed  to  the  provisions  of  this  resolution. 

Mr.  Lincoln  —  Mr.  President,  it  seems  to  me  hardly  worth  while 
for  this  Convention  to  break  in  upon  its  other  work  to  intro- 
duce this  suffrage  amendment  into  the  day's  session.  We  voted 
last  week  to  use  the  evening  sessions  until  the  subject  was 
exhausted.  We  have  used  three  evenings.  We  voted  last  night, 
I  suppose,  to  continue  it  to-night.  There  is  important  work  to  be 
done  before  the  committees  this  afternoon,  which  will  engage  the 
time  of  some  who  might  desire  to  participate  in  this  debate.  I  think 
this  question  can  be  disposed  of  this  evening  by  beginning  promptly 
at  the  usual  hour,  without  taking  any  time  this  afternoon.  As  I 
understand  it,  nearly  all  the  arguments  upon  each  side  have  already 
been  presented.  There  may  not  be  more  than  two  or  three  speeches 
more,  in  any  event.  I  object,  so  far  as  I  am  concerned,  to  the  con- 
sideration of  this  question  this  afternoon. 

Mr.  McClure  —  Mr.  President,  I  agree  entirely  with  the  gentle- 
man in  his  suggestion  as  to  this  innovation  on  the  understanding 
reached,  with  reference  to  this  matter  of  suffrage  and  the  general 
business  of  this  Convention.  By  reason  of  the  fact  that  it  was 
understood  that  the  matter  of  suffrage  was  to  be  discussed  and  dis- 
posed of  at  an  evening  session,  several  important  committee  meet- 
ings have  been  arranged  for,  among  them,  that  which  has  been 
deemed  by  a  great  many  members  of  this  Convention  as  very 
important,  the  matter  of  the  preservation  of  the  State  forests.  In 
that  matter  a  public  hearing  was  arranged,  to  attend  which  gentle- 
men have  come  from  New  York,  and  it  is  a  matter,  in  my  judgment, 
that  far  exceeds  the  present  question  of  woman  suffrage.  Upon 
that  matter  gentlemen  have  come  from  New  York  to  be  heard. 


August  15.]  CONSTITUTIONAL  CONVENTION.  471 

In  that  matter  a  great  many  members  of  this  Convention  have 
expressed  an  active  interest,  as  have  men  who  are  dwelling  in  the 
neighborhood  of  the  forests,  and  who  know  something  of  the  needs  of 
the  occasion.  I  say,  sir,  that  it  is  a  great  mistake  to  ask  members 
who  seek  an  attendance  upon  committee  matters  to  absent  them- 
selves from  the  discussion  at  the  end  of  this  suffrage  matter,  and  that 
there  is  no  necessity  for  intruding  or  trenching  upon  the  afternoon 
for  its  disposition.  I  think  that  it  may  be  discussed  and  voted 
upon  to-night,  and  allow  the  arrangements  that  have  been  made, 
in  view  of  the  fact  that  it  was  not  to  be  heard  during  the  afternoon, 
not  to  be  interfered  with.  If  in  order,  I  move  that  the  portion 
of  the  report  which  provides  for  an  afternoon  session  be  amended 
so  as  to  provide  that  there  shall  be  no  afternoon  hearing,  but  that 
the  Convention  shall  assemble  at  seven  o'clock  this  evening  and  that 
the  time,  as  fixed  by  the  report,  shall  be  allotted  in  the  same  way 
and  a  vote  he  had  this  evening. 

Mr.  Storm  —  Mr.  President,  I,  for  one,  fail  to  understand  the 
position  we  are  in,  in  regard  to  this  matter.  According  to  the  reso- 
lution that  I  understand  was  adopted,  the  suffrage  question  was 
made  a  special  order  for  to-night.  Therefore,  it  seems  to  me  that 
this  is  out  of  order. 

Mr.  Barhite  —  Mr.  President,  I  certainly  hope  that  the  report  of 
the  Committee  on  Rules  will  not  prevail.  I  admit  that  this  subject 
which  has  been  under  discussion  for  the  last  three  evenings  is  a 
very  important  one. 

Mr.  Storm  —  Mr.  President,  I  rise  to  a  point  of  order.  I  am  of 
the  opinion  that  the  matter  has  been  disposed  of,  in  regard  to  the 
woman  suffrage  question  —  that  it  was  to  be  a  special  order  for 
to-night.  Therefore,  why  take  up  the  time  in  considering  the  sub- 
ject of  a  session  this  afternoon? 

The  President  pro  tern. —  The  ruling  of  the  Chair  is  that  this  Con- 
vention has  a  right  to  make  special  orders  and  do  away  with  special 
orders.  This  matter  of  the  Committee  on  Rules,  by  the  rules 
themselves,  is  always  in  order,  and  the  debate  upon  it  seems  to  be 
perfectly  in  order. 

Mr.  Barhite  —  We  have  already  had  some  seven  or  eight  hours 
of  eloquent  and  logical  debate  upon  both  sides  of  this  suffrage 
question.  The  question  has  already  been  discussed  most  thoroughly 
pro  and  con  in  the  committee.  I  do  not  believe  that  this  Conven- 
tion should  take  any  more  time  than  that  provided  by  the  committee 
for  the  evening  session.  I  certainly  hope  that  the  report  will  not 


472  REVISED  RECORD.  [Wednesday, 

prevail,  but  that  we  may  go  on,  as  we  intended,  this  evening  and 
finish  the  matter  up  at  that  time. 

Mr.  McMillan  —  Mr.  President,  from  the  hearing  before  the  com- 
mittee by  those  in  charge  of  this  discussion,  it  appears  that  a  vote 
was  expected  last  evening;  it  further  appears  that  at  least  three 
hours'  time  will  be  necessary  to  satisfy  all  of  the  parties  in  the 
further  discussion.  If  this  matter  is  put  over  until  eight  o'clock  this 
evening,  a  vote  cannot  be  reached  before  eleven,  and,  with  the  three 
to  five  minutes'  time  allowed  to  members  to  explain  their  votes, 
it  will  be  midnight  before  the  roll-call  will  be  completed.  It  was 
for  this  reason  that  the  committee  were  impelled  to  report  to  the 
Convention  that,  in  their  judgment,  two  hours  of  this  afternoon 
should  be  devoted  to  the  discussion  of  this  question,  fixing  the  hour 
when  the  vote  should  be  taken  at  a  specific  time  so  that  every  dele- 
gate who  might  desire  to  cast  his  vote  might  be  present  at  that  hour 
of  nine  o'clock  this  evening.  This  will  not  interfere  in  any  manner 
with  the  sittings  of  committees  this  afternoon,  because  I  apprehend 
that  not  more  than  one-half  of  the  delegates  desire  to  be  present  at 
this  discussion,  unless  some  vote  is  to  be  taken. 

Mr.  Veeder  —  Mr.  President,  is  a  motion  to  amend  in  order? 

The  President  pro  tern. —  A  motion  to  amend  is  in  order. 

Mr.  Veeder  —  Then  I  move  to  strike  out  of  the  proposition  or  the 
rule  reported  so  much  of  it  as  classifies  the  particular  time  assigned 
to  individuals  to  speak  on  one  side  or  the  other  of  the  proposition. 
I  know  of  no  instance  when  such  a  rule  was  ever  adopted  in  any 
legislative  body.  It  is  a  dangerous  precedent. 

Mr.  McMillan  —  Will  the  gentleman  give  way  for  a  moment? 
Our  rule  expressly  provides  that  when  an  assignment  of  time  is 
made  it  must  be  equally  divided  between  those  in  favor  and  those 
opposed.  That  is  the  rule  of  the  Convention. 

Mr.  Veeder  —  I  submit  that  the  proposition  is  a  dangerous  one 
to  undertake  to  divide  the  time  by  hours,  as  the  proposition  intends 
to  do,  saying  that  certain  individuals  on  one  side  of  the  case  shall 
be  heard  at  a  particular  time,  and  those  on  the  other  side 
shall  be  heard  at  another  time.  That  does  not  involve  the  simple 
question  of  allotment  of  time  equally  between  the  contestants.  That 
can  be  done  by  the  President  or  by  some  one  rising  to  a  point  of 
order.  But  here  is  a  separate  proposition,  dividing  the  time  by 
periods  in  a  particular  direction.  I  submit  it  is  a  dangerous  prece- 
dent, a  very  dangerous  precedent.  Delegates  may  desire  to  speak 
at  a  particular  juncture  of  debate  and  not  at  some  other  period  of 
time.  It  should  be  left  to  them  and  the  recognition  they  receive 


August  15.]  CONSTITUTIONAL  CONVENTION.  473 

from  the  Chair.     I  do  not  object  to  dividing  the  time  of  debate 
equally,  if  it  is  necessary. 

Mr.  H.  A.  Clark  —  Air.  President,  i  hope  this  resolution  will  pre- 
vail. Whilst  several  have  spoken  upon  the  different  sides  of  this  ques- 
tion, I  consider  that  there  is  no  great  issue  necessarily  to  be  deter- 
mined. There  is  nothing  to  interfere  with  this  Convention  meeting 
this  afternoon,  except  the  meeting  of  several  committees.'  It  seems  to 
be  well  agreed  that  these  committees  may  meet  and  go  on  with  their 
duties,  that  no  one  is  needed  here  this  afternoon,  except  those  who 
wish  to  speak.  (Laughter.)  The  gentlemen  from  the  Committee 
on  Rules  say  it  is  not  necessary  for  us  to  appear  here;  we  can  attend 
to  our  duties,  with  the  understanding  that  delegates  can  go  about 
their  duties  in  the  committee  room  and  that  the  speakers  only  shall 
appear  here  this  afternoon.  I  agree  with  the  Committee  on  Rules 
that  this  rule  should  be  adopted,  it  being  understood  that  a  vote 
shall  not  be  taken  until  the  evening  session. 

Mr.  E.  R.  Brown  —  Mr.  President,  I  dislike  to  take  the  further  time 
of  the  Convention  in  this  matter,  but  I  know  there  are  a  number 
of  men  engaged  on  committees,  who  are  very  much  interested  in 
the  suffrage  question  (and  I  am  not  one  of  them),  and  who  desire  to 
be  heard  on  that  subject,  and  whose  presence  in  committee  is  abso- 
lutely essential  this  afternoon  to  the  carrying  on  to  a  successful 
conclusion  the  work  of  those  committees.  I,  therefore,  hope  this 
matter  will  be  recommitted  to  the  Committee  on  Rules,  with  instruc 
tions  to  report  a  rule  on  this  subject  which  shall  not  provide  for  ', 
hearing  this  afternoon. 

Mr.  Choate  —  Mr.  President,  after  conferring  with  several  mem- 
bers of  the  Committee  on  Rules  and  hearing  what  has  been  said 
here,  I  second  the  motion  made  by  Mr.  McClure  to  amend  the  rule 
offered  by  the  Committee  on  Rules,  by  providing  that  the  Conven- 
tion meet  at  seven  o'clock  this  evening,  instead  of  this  afternoon; 
that  it  be  made  a  special  order  for  that  hour;  that  the  vote  be  taken 
at  ten  o'clock  and  that  the  distribution  of  time  be  left  as  it  is 
provided  in  the  committee's  report.  It  has  been  said  here  that  very 
few  gentlemen  wish  to  be  heard.  I  desire  to  state  that  last  evening 
as  many  as  sixteen  names  were  sent  to  the  Chair  of  gentlemen 
desiring  to  be  heard.  It  was  only  possible  to  hear  six  of  them. 
I  understand  that  each  of  the  other  gentlemen  has  something 
entirely  new  and  original  to  offer.  (Laughter.)  I,  therefore,  hope 
that  the  amendment  proposed  by  Mr.  McClure  will  be  adopted. 
(Applause.) 

The  President  pro  tern. —  The   question   is   on  the   amendment 


474  REVISED   RECORD.  [Wednesday, 

offered  by  Mr.  McClure  that  the  Convention  meet  on  this  special 
order  this  evening  at  seven  o'clock,  and  that  a  vote  upon  the  ques- 
tion be  taken  at  ten  o'clock. 

Mr.  Choate  —  And  the  distribution  of  time  be  left  as  otherwise 
provided  in  the  rule? 

The  President  pro  tern. —  The  Chair  understands  that  one-half 
hour  is  to  be  devoted  to  those  in  favor  of  sustaining  the  adverse 
report,  that  the  succeeding  hour  and  a  half  be  given  to  those  who 
are  opposed  to  it,  that  the  following  hour  be  given  to  those  who  are 
in  favor  of  it. 

Mr.  Veeder  —  Mr.  President,  do  I  understand  the  proposition  to 
be  to  give  one  side  the  opening  and  closing  of  the  discussion? 

The  President  pro  tern. —  That  is  the  proposition. 

Mr.  Veeder  —  And  that  is  the  side  that  favors  the  report  of  the 
committee? 

The  President  pro  tern. —  Yes. 

Mr.  Veeder  —  What  could  be  more  cowardly?  I  submit  that  my 
proposition  is  a  fair  one.  Let  the  time  be  divided  equally,  if  it  is 
desired;  but  to  designate  a  particular  time  when  a  party  interested 
in  a  measure  shall  press  it  or  oppose  it,  is  an  unheard  of  proposi- 
tion. It  will  result  disastrously  in  the  future.  Divide  the  time 
equally,  but  do  not  assign  the  opening  or  closing  to  one  side  of  the 
case. 

The  President  pro  tern. —  Will  the  gentleman  be  kind  enough  to 
state  his  amendment? 

Mr.  Veeder  —  I  move  to  strike  out  all  of  the  resolution  which 
provides  for  the  assignment  of  time  as  therein  stated.  I  am  willing 
to  leave  the  division  of  time  equal  between  the  two  sides. 

Mr.  Lauterbach  —  Mr.  President,  I  think  it  but  fair  to  say  for  the 
Committee  on  Rules  and  for  the  majority  of  the  Suffrage  Com- 
mittee, that  the  suggestion  of  the  procedure  was  acquiesced  in, 
perhaps,  mistakenly  by  myself,  representing  the  opposition  as  a 
member  of  the  Suffrage  Committee,  and  that  there  has  been  no 
intent,  either  on  the  part  of  the  Committee  on  Rules  or  of  the  Com-, 
mittee  on  Suffrage,  to  deprive  the  opposition  of  their  fair  allotment 
of  time  and  of  a  fair  position,  in  respect  to  the  juncture  at  which 
the  arguments  should  be  made  upon  the  respective  sides.  The 
suggestion  originally  made  was  that  the  opposition  should  originate 
the  debate,  as  they  felt  that  they  had  not  been  very  fully  advised  of 
the  full  character  of  the  argument  in  support  of  the  report ;  and,  as 
no  report  had  emanated  from  the  committee  on  either  side,  either 


August  15.]  CONSTITUTIONAL  CONVENTION.  475 

a  majority  or  a  minority  report,  except  the  formal  report  adversely, 
it  was  thought  proper  that  the  opening  of  the  argument  should  be 
made  by  those  in  favor  of  sustaining  the  report  of  the  committee, 
so  that  the  first  portion  of  time  was  allotted  to  them.  The  chairman 
of  the  committee,  who  has  reserved  his  argument,  and  who,  whether 
absolutely  within  parliamentary  rule  or  not,  has  claimed  the  right  of 
closing  the  debate,  having  an  argument  fully  prepared  which  will 
require  nearly  an  hour  in  its  delivery,  would  take  the  last  hour  of  the 
debate.  That  would  leave  the  intermediate  period  for  those  who 
are  to  be  heard  in  opposition  to  the  report;  and  it  is  but  just  to 
make  the  statement  that  it  was  after  consultation  and  deliberation 
and  because  it  was  deemed  fair,  that  the  allotment  of  time  should 
not  only  be  made,  but  that  it  should  be  made  in  view  of  the  fact 
that  the  chairman  had  not  yet  addressed  the  Convention,  and 
claimed  the  right  of  closing,  which  seems  to  be  conceded,  and  seems 
to  be  regular  in  the  case  of  a  report  submitted  as  this  is.  If  the 
usual  method  obtained  of  simply  allotting  the  time  between  two 
parties  and  endeavoring  to  alternate  the  debate,  confusion  would 
arise  in  which  the  order  intended  to  be  preserved  could  not  be  fully 
preserved.  I  think  the  friends  of  woman  suffrage  cannot  feel  that 
any  injustice  has  been  done  them,  if  the  hour  and  a  half  after 
the  opening  half-hour  is  devoted  to  a  discussion  of  their  interests, 
and  the  final  hour  is  allotted  to  the  chairman  of  the  committee. 

Mr.  Dean  —  Mr.  Chairman,  I  believe  the  friends  of  suffrage  are 
entirely  willing  to  go  to  a  vote  after  Mr.  Goodelle  has  spoken. 
Therefore,  I  move  the  previous  question. 

Mr.  Veeder  —  I  will  withdraw  my  amendment. 

Mr.  I.  S.  Johnson  —  I  ask  Mr.  Dean  to  withdraw  his  motion  for 
the  present. 

Mr.  Dean  —  I  withdraw  the  motion. 

Mr.  Goodelle  —  I  thought  it  but  fair  that  I  should  state  that  I 
fully  concur  in  what  has  been  stated  by  Mr.  Lauterbach. 
Mr.  Lauterbach,  with  myself,  was  called  before  the  Committee  on 
Rules,  and,  after  a  discussion  of  the  matter,  the  time  was  allotted 
and  agreed  upon  by  the  respective  sides,  as  has  been  suggested,  as 
being  the  most  satisfactory  conclusion,  perhaps,  to  which  we  could 
arrive.  I  hope,  therefore,  that  the  amendment  offered  by  the  Presi- 
dent of  this  Convention  will  be  adopted. 

The  President  pro  tern,  put  the  question  on  whether  the  main 
question  should  now  be  put,  and  it  was  determined  in  the  affirmative. 

The  President  pro  tern,  put  the  question  on  the  amendment  of 


476  REVISED   RECORD.  [Wednesday, 

Mr.  McClure,  as  amended  by  Mr.  Choate,  and  it  was  determined  in 
the  affirmative. 

The  President  pro  tern,  put  the  question  on  the  original  report,  as 
amended,  and  it  was  determined  in  the  affirmative. 

Mr.  Vedder  —  Mr.  President,  I  gave  way  a  short  time  since  for 
the  report  of  the  Judiciary  Committee,  and  I  desire  now,  under 
the  rules,  to  make  an  adverse  report. 

The  Secretary  read  the  report  offered  by  Mr.  Vedder  as  follows: 

Mr.  Vedder,  from  the  Committee  on  Powers  and  Duties  of  the 
Legislature,  to  which  was  referred  the  amendment  introduced  by 
Mr.  Arnold  (introductory  No.  115),  and  entitled,  "Proposed  con- 
stitutional amendment  to  amend  article  3,  section  18,  by  requiring 
all  private  and  local  bills  to  be  printed  in  the  locality  affected 
thereby,"  reports  adversely  thereto. 

The  President  pro  tcm. —  The  question  is  on  agreeing  with  the 
adverse  report  of  the  committee. 

Mr.  Arnold  —  Mr.  President,  I  move  to  disagree  with  the  adverse 
report  of  the  committee,  and  ask  to  have  the  proposition,  as  now- 
presented,  as  amended  and  on  file,  read  by  the  Secretary. 

The  Secretary  read  the  proposition  as  follows: 
Section  18  of  article  3  is  hereby  amended  by  adding  at  the  end 
thereof  as  follows: 

No  local  or  private  bill  shall  be  passed,  unless  notice  of  the  gen- 
eral character  thereof  and  of  the  intention  to  apply  therefor,  shall 
have  been  published  for  at  least  fifteen  days  in  the  newspapers 
designated  by  the  boards  of  supervisors  to  print  session  laws  in  the 
county  where  the  matter  or  thing  to  be  affected  may  be  situated, 
or,  if  such  papers  are  printed  weekly,  then  in  two  such  papers 
twice  in  each  paper,  prior  to  the  introduction  of  such  bill  into  the 
Legislature.  Evidence  of  such  notice  having  been  published  shall 
he  submitted  to  the  Legislature  before  such  bill  shall  pass;  provided, 
however,  that  such  publication  shall  not  be  required,  if  the  necessity 
for  the  immediate  consideration  of  such  local  or  private  bill  shall  be 
certified  to  by  the  chairman  of  the  board  of  supervisors,  mayor  of 
the  city,  supervisor  of  the  town  or  president  of  the  village  in  which 
the  matter  or  thing  to  be  affected  by  such  local  or  private  bill  may 
be  situated. 

Mr.  Arnold  —  Mr.  President,  since  that  amendment  was  pro- 
posed, some  of  the  delegates  have  suggested  further  amendments, 
and  I  think  it  would,  therefore,  be  proper  to  go  to  the  Committee 
of  the  Whole  so  that  the  principle  which  I  seek  to  maintain  here 


August  15.]  CONSTITUTIONAL  CONVENTION.  477 

may  be  recognized,  namely,  that  there  shall  be  some  opportunity 
for  localities  to  say  what  legislation  shall  be  passed  for  those  locali- 
ties. This  principle  has  already  been  recognized  in  this  body,  in  the 
bill  of  Mr.  Vedder.  The  object  of  my  amendment  is  not  only  to 
prevent  the  passage  of  bad  laws,  but  also  to  put  good  laws  in  better 
shape  by  enabling  the  people  interested  to  discuss  the  matter  and 
so  put  them  in  form  that  they  may  be  properly  and  readily  passed 
upon  when  they  come  before  the  Legislature.  The  only  remedy 
that  the  people  have  to  relieve  themselves  from  a  bad  law  is  to  move 
for  its  subsequent  repeal.  I  have  in  mind  a  bill  introduced  into  the 
Legislature  affecting  the  village  of  Westchester.  This  bill  created 
a  board  of  seven  commissioners  who  had  very  great  powers.  It 
became  a  law.  There  was  great  objection  to  it,  and  last  year  it 
was  repealed.  My  object  is  to  prevent  such  legislation.  We  all 
know,  in  the  passage  of  such  bills;  that  frequently  the  member  intro- 
duces them  and  by  an  interchange  of  courtesies  the  bill  goes  through 
to  a  vote  and  the  people  have  no  means  of  ascertaining  what  law 
has  been  introduced.  By  my  amendment  they  must  have  an  oppor- 
tunity. It  will  also  be  noticed  that  there  is  a  provision  that  in 
case  of  an  emergency  it  may  be  certified  to  by  the  supervisor  of  the 
locality  to  be  affected.  It  has  also  been  suggested  by  a  delegate 
that  a  copy  of  such  bill  shall  also  be  filed  in  the  office  of  the  Secre- 
tary of  State  at  least  fifteen  days  prior  to  its  introduction,  unless 
consideration  thereof  shall  be  certified  to  as  aforesaid.  Now,  I  ask 
that  the  principle  go  before  the  Convention  so  that  amendments 
may  be  made  that  shall  perfect  my  amendment  in  the  principle  of 
giving  localities  a  right  to  guard  the  legislation  affecting  them,  and 
I,  therefore,  niove  that  the  report  of  the  committee  be  disagreed  to. 

Mr.  E.  R.  Brown  —  I  feel  it  my  duty  to  say  at  this  time  that  I 
regard  the  principle  embodied  in  this  amendment  as  one  of  the  most 
important  principles  before  this  Convention  for  consideration.  It 
is  a  principle,  carried  much  farther,  but  a  principle  that  is  now,  and 
for  a  long  time  has  been,  in  operation  in  other  countries.  For  my 
own  part,  I  do  not  believe  in  imposing  undue  restrictions  upon  the 
power  of  the  Legislature,  but  I  believe,  if  we  impose  proper  restric- 
tions upon  the  methods  of  legislation,  we  will  do  more  to  accomplish 
what  we  desire  to  accomplish,  in  raising  the  tone  of  legislation  in 
this  State  than  we  can  by  cutting  off  the  power  to  legislate. 

This  bill  looks  toward  improvement  in  methods  of  legislation. 
There  is  nothing  unreasonable  in  the  idea  that  a  private  and  local 
act  should  be  published  in  the  locality  which  it  is  to  affect  before  it 
is  enacted  into  law  in  the  State  of  New  York.  Every  man  knows 
the  custom  of  the  Legislature  in  relation  to  these  private  and 


478  REVISED   RECORD.  [Wednesday, 

local  acts.  They  are  introduced  solely  upon  the  responsibility  of 
the  members  from  the  district  affected  by  them.  They  are  often 
presented  late  in  the  days  of  the  session  and  rushed  through  the 
Legislature.  And  there  lie  the  means  and  the  opportunity  for 
improper  legislation  more  than  in  any  other  class  of  legislation.  I 
trust,  Mr.  President,  if  a  vote  is  not  now  taken  to  disagree  with  the 
report  of  the  committee  on  this  subject,  that  the  Convention  will 
not  close  the  door  against  some  relief  in  this  direction.  It  should 
not  be  hastily  passed  upon.  It  "should  be  deliberately  considered. 
I  regard  it  as  the  most  important  step  that  could  be  possibly  taken 
by  the  Convention  to  raise  the  tone  of  legislation. 

Mr.  Becker  —  Mr.  Chairman,  I  fully  sustain  the  position  taken  by 
Mr.  Brown  in  this  matter.  I  earnestly  believe  that  if  there  is  any 
amendment  before  this  Convention  which  would  accomplish  the 
measure  of  legislative  reform,  tend  to  elevate  the  methods  of  legis- 
lation and  purify  them,  it  is  this.  I  sincerely  hope  this  motion  will 
prevail,  so  that  the  matter  can  go  on  the  calendar,  as  I  understand  it 
will  go,  if  the  report  of  the  committee  is  not  agreed  to,  and  be  care- 
fully discussed  and  have  a  full  opportunity  for  a  hearing  before  the 
Convention. 

Mr.  Roche  —  Mr.  President,  the  Committee  on  the  Powers  and 
Duties  of  the  Legislature  had  three  separate  propositions  on  this 
subject  before  them,  one  introduced  by  Mr.  Arnold,  one  introduced 
by  Mr.  Root,  and  one  introduced  by  Mr.  Bigelow,  all  looking 
toward  improvement  in  the  methods  of  legislation.  Now,  the  com- 
mittee has  reported  this  one  adversely:  I  dissent  from  the  report 
of  the  committee.  I  believe  that  the  report  should  be  disagreed  to 
and  the  matter  should  be  brought  into  the  Committee  of  the  Whole, 
where  the  subject  can  be  carefully  and  thoroughly  discussed.  I 
think  that  the  proposition,  or  the  amended  proposition  of 
Mr.  Arnold,  is  one  which  should  receive  the  favorable  consideration 
of  this  Convention.  It  seems  to  me  that  it  will  be  a  great  step  for- 
ward in  the  work  of  improving  the  methods  of  legislation;  and 
above  all,  of  securing  to  persons  and  corporations,  the  people  and 
localities  interested  in  private  or  local  bills,  due  notice  of  the  pro- 
posed introduction  of  a  bill,  in  order  that  they  may  ascertain  how  it 
affects  their  interests.  We  all  know  that  one  of  the  great  troubles 
of  the  Legislature,  one  of  the  abuses  accompanying  our  present 
legislative  methods,  is  the  hasty,  almost  secret  introduction  of  meas- 
ures of  the  most  important  character,  even  if  on  their  face  they 
appear  to  be  private  or  local ;  and  the  first  thing  that  is  known  by  the 
corporations,  or  by  the  individuals,  or  by  the  localities  interested,  is 
that  such  a  measure  has  passed  the  Legislature.  Now,  sir,  it  seems 


August  15.]  CONSTITUTIONAL  CONVENTION.  479 

to  me,  that  we  should  do  something  to  get  rid  of  this  abuse,  and  to 
enable  the  people  who  are  interested,  to  have  a  fair  opportunity  of 
ascertaining  the  character  of  the  bill  and  how  it  affects  their  inter- 
ests, so  that  they  may  be  heard  before  the  committees  of  the  Legis- 
lature in  due  season.  This  will  be  secured,  among  other  ways,  by 
requiring  that  a  copy  of  the  measure  shall  be  filed  in  the  public  office, 
namely,  the  office  of  the  Secretary  of  State.  I  know  it  is  proposed 
by  the  gentleman  from  Cattaraugus  (Mr.  Vedder)  that  some  of  these 
abuses  shall  be  removed,  and  that  better  consideration,  more  deliber- 
ate action  upon  the  part  of  the  Legislature,  shall  be  secured  by  his 
measure,  requiring  that  all  bills  shall  be  printed  and  be  on  the  desks 
of  the  members  for  at  least  three  legislative  days.  In  my  opinion, 
Mr.  Chairman,  it  is  a  very  good  measure,  but  I  think  it  a  mistake 
to  regard  it  as  a  panacea  for  all  the  evils  and  all  the  abuses  connected 
with  our  legislative  methods.  It  does  not  secure  to  localities,  nor  to 
the  parties  interested,  reasonable  and  adequate  notice  of  the  measure 
which  is  proposed  to  be  introduced.  There  is  no  good  reason  that 
I  can  see  why,  if  public  officers  propose  to  amend  the  charter  of  the 
city,  that  public  notice  of  the  fact,  in  order  that  the  citizens  may 
have  an  opportunity  to  know  what  is  proposed  affecting  their  public 
or  private  interests,  as  taxpayers  or  otherwise,  should  not  be  pub- 
lished in  the  official  newspapers,  that  they  may  consider  it  in  due 
season,  have  ample  time  therefor,  come  together,  if  need  be, 
in  public  meeting,  talk  it  all  over,  and  determine  what  they  will 
do.  The  same  would  apply  to  any  corporation  or  to  any  class  of  indi- 
viduals who  may  be  affected  upon  a  matter  on  which  it  is  proposed 
that  legislative  action  shall  be  taken.  It  will  also  facilitate  the  passage 
of  bills.  The  hearing  can  be  had  at  home,  the  consideration  of  it 
will  be  had  at  home,  and  time  can  be  saved  and  money  saved  to  the 
individuals  and  localities  interested,  by  having  it  considered  and  per- 
fected at  home,  instead  of  being  compelled  to  come  to  hasty 
meetings  of  the  committees  of  the  Legislature,  and,  perhaps,  fre- 
quent meetings  for  the  consideration  of  the  matter.  It  seems  to  me, 
that  under  these  circumstances,  Mr.  President,  in  view  of  the  num- 
ber of  gentlemen  who  have  introduced  measures  bearing  upon  this 
subject,  and  upon  the  general  desire  that  this  Convention  should  not 
adjourn  without  taking  some  steps  that  will  tend  to  secure  more 
deliberate  and  satisfactory  legislation  and  legislative  methods,  that 
this  report  should  not  be  agreed  to,  but  that  the  matter  should  be 
sent  to  the  Committee  of  the  Whole,  in  order  that  there  it  may  be 
perfected,  and  the  Convention  determine  with  greater  deliberation 
than  it  can  now,  what  disposition  shall  be  made  of  this  amendment. 


480  REVISED   RECORD.  [Wednesday, 

The    President    pro    tern. —  Does    the    gentleman    desire    to    be 
regarded  as  dissenting  from  the  report  of  the  committee? 
Mr.  Roche  —  Yes,  sir. 

Mr.  Alvord  —  Mr.  President,  I  desire  to  say  that  so  far  as  this 
matter  is  concerned,  it  strikes  a  very  serious  blow  at  the  third  house 
of  the  Legislature.  I  shall  in  vain  look,  if  I  live  long  enough,  over 
the  Legislature  of  this  State,  to  see  the  familiar  faces  and  hear  the 
familiar  voices  of  the  so-called  lobbyists.  I  trust,  therefore,  sir,  that 
the  proposition  will  receive  the  approbation  finally  of  this  Conven- 
tion. It  is,  as  has  been  said  by  the  gentleman  from  Rensselaer  (Mr. 
Roche),  in  the  right  direction.  It  will  give  us  pure  and  clean  legis- 
lation, which  now,  God  knows,  we  do  not  in  all  cases  have. 

Mr.  Choate  —  Mr.  President,  I  wish  merely  to  say  that  I  heartily 
concur  in  everything  that  has  been  said  adverse  to  this  report.  I 
think  it  is  a  subject  that  is  entitled  to  the  serious  consideration  of 
the  Convention  in  Committee  of  the  Whole.  I  believe  that  no 
proposition  would  do  more  to  reduce  the  total  amount  of  this  per- 
nicious local  and  private  legislation,  than  some  such  proposition  as 
is  now  inaugurated. 

Mr.  Dean  —  Mr.  President,  I  want  to  go  on  record  distinctly,  as 
dissenting  from  this  clap-trap  arrangement  for  delegating  the  legis- 
lative power  of  the  State  to  local  committees.  We  have  in  the  first 
section  of  the  article  a  dignified  declaration  that  the  legislative 
power  of  this  State  shall  be  vested  in  the  Senate  and  Assembly,  and 
I  am  unalterably  opposed  to  going  into  every  local  community 
and  into  every  newspaper  office  for  the  purpose  of  legislation.  I  do 
not  believe  in  it.  It  is  pernicious.  It  takes  away  responsibility 
from  responsible  representatives,  and  places  it  in  the  hands  of  the 
mob.  It  is  vicious,  un-American,  and  ought  not  to  prevail. 

Mr.  Vedder  —  Mr.  President,  the  committee  had  this  and  other 
similar  propositions  of  similar  nature  under  consideration  for  some 
time,  and  heard  every  one  who  desired  to  come  before  the  commit- 
tee and  be  heard  on  these  propositions.  There  are  two  or  three 
of  the  same  nature  which  have  been  reported  adversely  by  the  Com- 
mittee on  Legislative  Powers  and  Duties.  Some  of  the  gentlemen 
here  have  expressed  themselves  as  desiring  that  this  should  be  heard 
in  the  Committee  of  the  Whole.  If  it  could  be  made  a  special  order, 
and  all  propositions  of  a  similar  nature  could  be  heard  at  the  same 
time,  I  should  myself  have  no  objection  to  it,  so  that  the  whole  Con- 
vention might  hear  the  discussions  and  the  reasons  why  the  Com- 
mittee on  Legislative  Powers  reported  these  adversely.  I  believe 
that  the  proposed  legislation  is  vicious  in  principle,  and  will  be  more 


August  15-]  CONSTITUTIONAL  CONVENTION.  481 

vicious  in  practice;  it  will  simply  lull  the  people  of  the  localities  to 
sleep,  and  its  effect  will  be  the  merest  "  sounding  brass  and  tinkling 
cymbal."  The  proposition  which  is  now  upon  third  reading  is  suf- 
ficient for  all  practical  purposes.  It  permits  the  people  of  the  local- 
ity to  know  what  the  bill  is  that  is  in  a  form  to  be  passed.  Of  what 
earthly  use  is  a  bill,  notice  of  which  should  be  given  in  a  locality, 
and  even  if  the  whole  thing  was  spread  in  the  local  papers  which 
come  to  the  Legislature,  and  the  whole  meaning,  all  of  its  provisions, 
everything  except  its  name  is  entirely  changed,  and,  in  the  language 
of  Mr.  Root,  from  New  York,  changed  in  the  twinkling  of  an  eye? 

Mr.  Roche —  May  I  ask  the  gentleman  a  question?  Has  not 
the  Committee  on  Powers  and  Duties  of  the  Legislature  reported  a 
proposition  which  will  effectually  prevent  the  changing  of  bills  in 
the  twinkling  of  an  eye? 

Mr.  Vedder  —  What  proposition  is  that? 

Mr.  Roche  —  A  proposition  submitted  here  forbidding  the  chang- 
ing of  any  bill  on  its  passage  through  the  Legislature  after  its  intro- 
duction at  any  time  in  the  House,  which  would  change  the  subject- 
matter  of  the  bill. 

Mr.  Vedder  —  Precisely.  The  gentleman  who  has  just  spoken  took 
bodily  the  provisions,  I  believe,  from  the  Constitution  of  Pennsyl- 
vania, that  a  bill  should  not  be  changed  in  form  or  changed  in  sub- 
stance, which  also  is  a  mockery  and  a  snare  and  a  delusion.  It  is 
full  of  "  fat  contentions  and  flowing  fees,"  and  this  Convention,  I 
believe,  if  by  reason  of  having  sufficient  rest  between  these  numerous 
sessions,  can  maintain  their  sanity,  will  never  pass  it,  and  the 
people,  who  are  always  sane,  will  never  ratify  it  if  this  Convention 
should  pass  it.  But  let  the  Convention,  which  may  not  and  cannot 
know  what  these  suggestions  are,  because  they  are  not  before  them 
in  printed  form,  have  them  in  printed  form  before  them,  and  then 
let  us  debate  the  question,  when  everything  is  before  us,  and  we  can 
see  just  the  effect  of  these  provisions.  I  want  to  deal  in  practical 
things  and  not  in  sentiment.  I  want  to  deal  in  those  things  which 
will  make  legislation  practical,  which  will  prevent  bad  legislation,  if 
I  can.  I  want  to  put  those  things  in  the  Constitution  which  will 
work  to  that  end,  and  not  be  a  delusion.  I  am,  therefore,  Mr. 
President,  as  chairman  of  the  committee,  which  reported  these  two 
propositions  adversely,  willing  that  the  proposition  of  Mr.  Arnold 
and  the  other  propositions  shall  go  into  the  same  Committee  of  the 
Whole,  and  have  the  matter  there  discussed,  and  have  the  amend- 
ments proposed  by  either  of  the  gentlemen  printed  and  upon  the 
31 


482  REVISED   RECORD.  [Wednesday, 

desks  of  the  members,  so  that  we  may  know  about  what  we  are 
talking,  and  not  be  deceived  by  the  suggestions  of  good,  wise  and 
perfect  legislation. 

Mr.  McClure  —  Mr.  President,  I  only  desire  to  say  here  that  it 
seems  to  me  that  this  subject  has  assumed  proportions  that  make  it 
desirable  that  it  should  go  into  Committee  of  the  Whole.  On. the 
face  of  it,  I  am  in  favor  of  it,  but  a  suggestion  made  by  the  vener- 
able gentleman  behind  me  (Mr.  Alvord)  caught  my  attention,  and 
that  is  that  possibly  the  adoption  of  some  such  rule  would  make  less 
familiar  than  heretofore  the  voice  and  the  appearance  of  the  lobbyist 
in  the  halls  of  legislation.  I  am,  therefore,  in  favor  of  this  matter 
going  to  the  Committee  of  the  Whole,  upon  the  theory  that  perhaps 
we  can  amend  it  so  that  it  will  prevent  lobbying  in  the  halls  of  the 
Constitutional  Convention.  No  such  lobbying,  in  my  opinion,  has 
ever  been  seen  in  any  hall  of  legislation,  not  even  in  the  halls  of 
Congress,  as  has  been  witnessed  every  day  since  the  opening  of  the 
Convention  within  the  halls  of  this  chamber.  (Applause.)  I  say, 
sir,  whatever  the  objects,  whatever  projects  they  have  had  in  hand, 
it  has  been  a  disgrace  to  the  career  of  this  body  that  men  cannot 
venture  from  their  chairs  or  desks  to  pass  about  the  aisle  without 
being  button-holed  upon  one  subject  or  another  that  is  pending 
before  this  Convention.  I  am  averse  to  lobbying,  and  if  the  passage 
of  this  amendment  will  extend  to  Constitutional  Conventions  as  well 
as  to  Legislatures,  then  I  should  be  willing  to  put  my  general  objec- 
tions to  it  under  my  feet  and  vote  for  it.  I  hope,  sir,  that  it  will  be 
carried  to  the  Committee  of  the  Whole,  so  that  we  may  amend  it 
to  meet  every  possible  exigency. 

Mr.  Choate  —  Before  a  writ  de  lunatico  inquirendo  is  taken  out  on 
me,  as  threatened  by  the  gentleman  from  Cattaraugus,  I  move  the 
previous  question. 

The  President  pro  tern,  put  the  question  whether  the  main  question 
should  now  be  put,  and  it  was  determined  in  the  affirmative. 

Mr.  Dean  called  for  the  ayes  and  noes  upon  the  motion. 

Mr.  M.  E.  Lewis  —  I  rise  to  a  point  of  order,  that  the  question  has 
already  been  decided  by  the  Chair  to  have  been  carried. 

The  President  pro  tern. —  The  previous  question  has  been  carried. 

Mr.  Dean  —  I  withdraw  my  request  for  the  ayes  and  noes. 

The  President  pro  tern. —  The  question  before  the  Convention  is 
on  agreeing  with  the  report  of  the  committee. 

Mr.  Roche  —  Did  not  Mr.  Arnold  move  to  disagree  with  the 
report  of  the  committee? 


August  15.]  CONSTITUTIONAL  CONVENTION.  483 

Mr.  Arnold  —  That  was  my  motion. 

The  President  pro  tern. —  That  question  is  already  before  the 
House.  The  question  on  disagreeing  or  agreeing  is  immaterial. 

The  President  pro  tern,  put  the  question  on  agreeing  with  the 
report  of  the  committee,  and  it  was  determined  in  the  negative. 

The  President  pro  tern. —  The  report  of  the  committee  is  disagreed 
to,  and  the  matter  goes  upon  general  orders. 

Mr.  Vedder  —  Now,  Mr.  President,  in  order  to  have  practical 
legislation,  let  us  have  the  proposition  of  the  gentlemen  from  Rens- 
selaer  (Mr.  Roche)  and  the  gentleman  from  Oswego  (Mr.  \V.  H. 
Steele),  who  is  occupying  the  chair  at  this  moment,  and  that  of  Mr. 
Arnold,  all  in  the  Committee  of  the  Whole  together,  so  that  they 
may  be  considered  at  one  and  the  same  time. 

Mr.  Roche  —  The  proposition  I  referred  to  is  that  of  Mr.  Arnold; 
I  want  him  to  have  the  credit  of  it. 

Mr.  Vedder  —  Well,  they  are  all  substantially  alike.  I  make  the 
motion  that  when  they  are  considered,  they  be  considered  together. 

Mr.  Bowers  —  I  make  the  point  of  order  that  there  is  nothing 
before  the  House  at  the  present  moment.  The  matter  has  been  dis- 
posed of,  and  the  amendment  has  gone  to  the  Committee  of  the 
Whole,  and  when  we  get  there  we  can  amend  it. 

The  President  pro  tern. —  The  Chair  decides  the  gentleman's  point 
of  order  is  well  taken. 

Mr.  Dean  —  Mr.  President,  has  there  been  any  provision  for 
printing  the  several  proposed  amendments? 

The  President  pro  tern. —  There  are  no  amendments  before  the 
House.  There  is  nothing  before  the  House,  as  the  Chair  under- 
stands it,  at  present,  except  the  regular  order  of  business.  The 
regular  order  now  is  general  orders.  The  Secretary  will  read  the 
calendar. 

The  Secretary  called  general  orders  Nos.  2,  6,  49,  7  and  14,  which 
were  not  moved. 

The  Secretary  called  general  order  No.  16,  which  was  moved  by 
Mr.  Vedder. 

The  House  resolved  itself  into  Committee  of  the  Whole,  and  Mr. 
Acker  took  the  chair. 

The  Chairman  —  The  Convention  is  now  in  Committee  of  the 
Whole  on  general  order  No.  16  (printed  Xo.  382,  introductory  No. 
216).  The  Secretary  will  read  the  first  section. 


484  REVISED   RECORD.  [Wednesday, 

The  Secretary  read  the  first  section  as  follows: 

Section  10  of  article  3  of  the  Constitution  is  hereby  amended  so 
as  to  read  as  follows: 

Sec.  10.  The  majority  of  each  House  shall  constitute  a  quorum 
to  do  business.  Each  House  shall  determine  the  rules  of  its  own 
proceedings  and  be  the  judge  of  election  returns  and  qualifications 
of  its  own  members;  shall  choose  its  own  officers,  and  the  Senate 
shall  choose  a  temporary  president  to  preside  in  the  case  of  the 
absence  or  impeachment  of  the  Lieutenant-Governor,  or  when  he 
shall  not  attend  as  President,  or  shall  act  as  Governor. 

Mr.  Vedder  —  Mr.  Chairman,  if  Judge  Countryman  will  state 
where  his  amendment  is  to  come  in,  I  would  be  pleased  to  accept 
it  so  far  as  I  can. 

Mr.  Countryman  —  In  line  nine,  strike  out  the  words  "  not 
attend,"  and  insert  in  place  thereof  the  words  "  refused  to  act." 

Air.  Bush  —  Mr.  Chairman,  I  would  like  to  hear  from  Judge 
Countryman  the  purpose  of  his  amendment.  It  seems  to  me  at 
first  glance  to  be  a  somewhat  dangerous  innovation.  The  question 
that  would  arise  when  the  president  refused  to  act  would  be  one  to 
be  usually  determined  by  the  majority  of  the  Senate,  and  they  might 
be  very  arbitrary  sometimes  in  their  judgment.  For  instance,  if  the 
president  should  refuse  to  put  a  question,  or  declare  it  out  of  order, 
it  might  be  in  the  heat  of  partisanship,  and  it  might  be  declared  by 
the  then  majority  that  the  president  was  in  that  case  refusing  to  act 
as  president  of  the  Senate,  and  it  seems  to  me  it  might  cause  a 
great  many  complications.  I  have  not  thought  of  this  subject  before 
or  heard  of  the  amendment,  but  I  would  like  to  hear  from  Judge 
Countryman  what  the  purport  or  the  effect  of  the  amendment  would 
be  in  his  judgment. 

Mr.  Countryman  —  Mr.  Chairman,  the  object  of  the  amendment 
is  to  meet  one  of  the  contingencies  which  the  gentleman  last  on  the 
floor  has  suggested,  where  the  presiding  officer  of  the  Senate  refuses 
to  put  a  question  to  a  vote  of  the  Senate  or  Assembly.  Such  a 
contingency  occurred  in  the  history  of  legislation  last  winter,  in  the 
Senate  of  this  State,  where  the  Lieutenant-Governor,  sitting  in  his 
chair,  refused  to  put  a  question  to  the  Senate,  and  the  motion  was 
put  and  disposed  of  by  the  Senate  as  to  whether  or  not  the  contest- 
ing Senator  from  the  Sixth  Senatorial  District  of  the  State  should 
be  declared  a  member  of  the  body.  In  other  words,  the  presiding 
officer  of  the  Senate  refused  to  allow  that  body,  in  its  own  right  and 
in  its  own  behalf,  to  determine  a  question  of  a  quasi-judicial  char- 
acter, as  to  who  were  and  who  were  not  members  of  that  body ;  and 


August  15.]  CONSTITUTIONAL  CONVENTION.  485 

this  occurred  after  a  committee  had  been  appointed  by  the  Senate 
and  had  reported,  deciding  who  was  entitled  to  the  contested  seats. 
In  other  words,  the  action  of  the  Lieutenant-Governor  operated  as 
a  complete  obstruction  to  any  decision  on  the  part  of  the  Senate,  in 
reference  to  a  question  which  was  specially  committed  to  it  by  the 
Constitution;  and  this  is  to  prevent  any  such  action  as  that  on  the 
part  of  the  Lieutenant-Governor.  The  Lieutenant-Governor,  by 
the  Constitution,  is  not  a  member  of  the  Senate.  He  is  merely  a 
presiding  officer  there,  for  the  purpose  of  obeying  its  orders,  carry- 
ing out  its  instructions,  and  simply  presiding  over  its  deliberations; 
and  this  is  intended  to  confine  him  to  a  proper  exercise  of  his  duties 
as  an  c.\'-officio  presiding  officer.  It  would  also  apply  to  a  case 
where  the  Lieutenant-Governor.  as  presiding  officer,  was  personally 
interested  in  the  matter  before  the  House;  as  in  a  case  involving  his 
own  impeachment.  Suppose  the  question  was  before  the  Senate  as 
to  whether  or  not  a  vote  should  be  taken  on  a  proposition  to  impeach 
the  Lieutenant-Governor.  Should  he  be  permitted  to  sit  in  the 
chair  and  to  refuse  to  put  that  question  to  a  vote?  Such  a  case 
occurred  in  the  State  of  Colorado  within  the  last  few  years,  where 
the  speaker  of  the  Assembly  refused  to  put  such  a  question  to  a 
vote  of  the  House;  and,  as  there  was  no  provision  in  the  Constitution 
upon  the  subject,  the  House  could  only  act  by  a  member  of  the  body 
rising  in  his  seat  and  putting  the  question  to  a  vote,  and  thus 
obtaining  the  result  of  the  deliberations  of  the  legislative  body  on 
that  important  question.  The  matter  had  to  go  to  the  courts,  where 
it  was  finally  decided  that  it  was  properly  voted  upon  in  such  case 
where  the  presiding  officer  refused  to  act. 

It  strikes  me  that  such  a  matter  as  this  ought  to  be  especially  pro- 
vided for  in  the  Constitution  itself.  A  similar  thing  occurred  in 
the  House  of  Commons  more  than  two  hundred  years  ago,  where 
the  speaker  refused  to  put  a  question  to  a  vote  of  that  body  in  a 
matter  involving  his  own  action.  There  were  charges  against  him- 
self of  corruption  as  a  member  of  that  House,  and  it  was  necessary 
in  that  case  to  override  his  action  and  ignore  him  entirely  in  order 
to  get  any  legislative  action  on  the  part  of  the  House  of  Commons. 
It  strikes  me,  sir,  that  this  matter  ought  to  be  settled  by  some 
express  provision  in  the  Constitution. 

Mr.  Bush  —  Mr.  Chairman,  this  amendment  proposed  by  Judge 
Countryman  is  a  very  far-reaching  one,  one  fraught  with  great  dan- 
ger to  the  orderly  proceedings  of  the  upper  House  of  the  Legislature 
of  the  State  of  New  York.  It  seems  to  me  that  the  adoption  of  this 
amendment  would  absolutely  destroy  the  functions  of  the  Lieuten- 
ant-Governor as  the  presiding  officer  of  that  body.  The  Senate  of 


486  REVISED   RECORD.  [Wednesday, 

the  State  has  power  to  make  its  own  rules.  They  may  make  such 
rules  as  they  see  fit,  and  it  is  the  duty  of  the  Lieutenant-Governor, 
as  the  presiding  officer,  to  be  bound  by  those  rules,  and  guided  by 
them,  in  conducting  the  business  of  the  Senate.  If  he  declines  or 
refuses  to  obey  the  rules,  the  remedy  is  provided  of  impeachment. 
But  now  it  is  proposed  by  this  amendment  to  add  another  and  a 
distinct  remedy;  in  other  words,  to  simply  have  it  declared  by  the 
majority  that  he  is  refusing  to  act  as  president,  and  in  that  case  to  set 
him  aside.  There  is  scarcely  a  question  comes  up  where  party  dif- 
ferences are  involved,  but  what  there  is  a  political  struggle  between 
the  parties;  the  Lieutenant-Governor  is  always  of  one  party  or  the 
other,  and  where  he  is  opposed  to  the  majority,  the  majority  would 
invariably  adopt  a  resolution  declaring  that  he  was  refusing  to  act 
as  presiding  officer  and  setting  him  aside,  and  in  that  way  absolutely 
destroy  the  dignity  of  the  position,  and  bring  the  entire  proceedings 
of  the  body  into  contempt.  It  does  seem  to  me  that  we  must,  to  a 
certain  extent,  assume  that  any  man,  who  is  great  enough  and  large 
enough  to  be  elected  to  the  position  of  Lieutenant-Governor  of  the 
great  State  of  New  York,  has  honor  and  dignity  enough  not  to 
attempt  to  preside  over  a  body  where  the  question  of  his  own  moral 
turpitude  is  at  stake,  or  where  any  act  which  would  reflect  on  his 
own  honor  in  his  official  capacity  would  be  determined ;  and  particu- 
larly that  he  would  not  attempt  to  obstruct  any  such  thing  as  his 
own  impeachment,  or  any  question  of  that  character.  It  seems  to 
me  that  it  is  undignified  in  us  to  assume  that  any  man  of  that  char- 
acter will  ever  be  elected  to  the  position  of  Lieutenant-Governor  of 
this  State.  On  the  contrary,  it  seems  to  me  that  the  objections  to 
this  amendment  are  fraught  with  such  great  danger  that  this  Con- 
vention should  hesitate  long  before  it  adopts  this  amendment.  I 
concede  a  great  many  things  that  the  gentleman  who  proposed  this 
amendment  says,  that  there  are  times  in  the  heat  of  political  debate 
and  excitement,  when  a  presiding  officer  may  stretch  the  rules,  and 
even  step  beyond  their  limits;  but  that  is  comparatively  insignificant 
in  comparison  with  the  opposite  proposition  of  absolutely  destroying 
the  dignity  of  the  presiding  officer,  or  eliminating  the  power  which 
is  given  to  him  by  the  rules  of  the  body  over  which  he  is  called  to 
preside;  and  for  that  reason,  I  do  not  think  that  this  amendment 
should  be  adopted,  because  if  you  do  adopt  it,  it  seems  to  me  that 
it  will  be  one  source  of  constant  regret  in  the  upper  House  of  the 
Legislature  of  this  great  State. 

The  Chairman  —  The  question  arises  on  the  amendment  pro- 
posed by  Judge  Countryman. 

Mr.  Vedder — I  hope,  Mr.  Chairman,  that  the  amendment  will 


August  15.]  CONSTITUTIONAL  CONVENTION.  487 

prevail.  Instances  referred  to  by  Judge  Countryman,  and  also  our 
experience  of  the  last  five  or  six  years,  more  than  justify  an  amend- 
ment of  this  kind.  It  is  in  the  interest  of  order  and  orderly  pro- 
ceeding, and  nothing  more,  and  it  ought  to  prevail. 

Mr.  Lincoln  —  I  would  like  to  hear  the  amendment  read,  Mr. 
Chairman. 

The  Chairman  —  The  amendment  of  Mr.  Countryman  is,  in 
line  9,  to  strike  out  the  words  "  not  attend,"  and  insert  in  place 
thereof  the  words  "  refuse  to  act." 

Mr.  C.  H.  Truax  —  It  seems  to  me,  Mr.  Chairman,  that  if  this 
proposition  is  carried,  there  will  be  no  provision  in  the  article  allow- 
ing the  Senate  to  appoint  a  temporary  officer  in  the  absence  of  the 
presiding  officer. 

Mr.  Countryman  —  It  is  in  the  previous  clause. 

The  Chairman  put  the  question  on  the  adoption  of  the  amend- 
ment proposed  by  Mr.  Countryman,  and  it  was  determined  in  the 
affirmative. 

Mr.  Vedder  —  Mr.  Chairman,  I  move  that  the  committee  do  now 
rise,  report  this  proposition  to  the  Convention,  and  recommend  its 
passage. 

Mr.  Hawley  —  Mr.  Chairman,  I  don't  know  whether  that  motion 
is  debatable  or  not. 

The  Chairman  —  Certainly,  the  question  is  debatable. 

Mr.  Hawley  —  Mr.  Chairman,  when  this  proposed  amendment 
was  last  before  the  committee,  I  briefly  expressed  what  seems  to  me 
to  be  a  serious  and,  in  my  judgment,  fatal  objection  to  its  passage; 
and  that  is,  that  this  amendment  confers  the  power  upon  a  hostile 
Assembly,  at  any  moment  when  it  chooses,  in  the  heat  of  party  feel- 
ing, to  dethrone  the  Senate  by  the  simple  act  of  preferring  against 
its  presiding  officer  articles  of  impeachment.  Answer  was  made 
to  that  suggestion  by  the  venerable  gentleman  from  Onondaga  that 
the  objection  was  unsound,  inasmuch  as  the  Lieutenant-Governor 
was  not  impeached  until  the  Senate  itself  had  taken  action  upon  the 
articles  of  impeachment.  Such  is  not  my  understanding  of  the 
facts.  On  the  contrary,  the  Constitution  says  in  express  language 
that  the  Assembly  has  the  power  of  impeachment,  and  when  it  has 
discharged  its  duty  in  that  behalf,  the  officer  assailed  is  impeached; 
and  the  provisions  of  the  Constitution  are  such,  from  the  character 
of  a  judicial  office,  that  when  that  is  done  the  power  to  exercise 
judicial  functions  is  taken  from  the  judges  of  courts.  And  in  like 
manner  with  this  amendment,  the  power  to  exercise  the  functions 


REVISED   RECORD.  [Wednesday, 

of  the  presiding  officer  of  the  Senate  would  be  instantly  taken  from 
the  Lieutenant-Governor  upon  the  preferring  of  articles  of  impeach- 
ment by  the  Assembly.  I  believe  that  that  is  a  dangerous  innova- 
tion. If,  perchance,  I  am  wrong,  and  the  gentleman  from  Onon- 
daga  is  right,  that  the  Lieutenant-Governor  is  not  impeached  until 
the  Senate  has  taken  action  upon  the  articles  of  impeachment,  then 
the  very  purpose  of  this  amendment  utterly  fails,  because  not  being 
impeached  he  presides  over  the  deliberations  of  the  Senate  in  respect 
to  his  own  impeachment,  and  he  remains,  notwithstanding  the 
articles  of  impeachment,  a  full-fledged  presiding  officer  of  the  Senate 
until  he  shall  have  been  convicted. 

As  I  said  the  other  day,  this  amendment,  in  its  spirit  and  opera- 
tion, is  a  reversal  of  all  the  fundamental  principles  of  our  jurispru- 
dence. It  injects  into  the  Constitution  the  idea  that  a  man  is  guilty 
as  soon  as  accused,  and  not  that  he  is  presumed  to  be  innocent  until 
he  is  convicted.  For  these  reasons,  Mr.  Chairman,  I  think  that  the 
amendment  should  not  be  reported  to  the  Convention  with  a  recom- 
mendation for  its  passage. 

Mr.  Lincoln  —  Mr.  Chairman,  I  am  unable  to  appreciate  the  force 
of  the  objection  made  by  the  gentleman  who  last  addressed  the  com- 
mittee. It  seems  to  me  that  he  must  have  failed  to  examine  the 
statutes  bearing  upon  the  question  of  the  organization  of  the  Court 
of  Impeachment.  Section  one  of  the  judiciary  articles  —  article  six 
of  the  Constitution  —  prescribes  what  shall  constitute  a  Court  of 
Impeachment,  but  the  details  of  the  practice  in  that  court  and  the 
organization  of  that  court  are  not  prescribed  by  the  Constitution 
itself.  They  are  left  for  statutory  regulation  by  the  Legislature. 
Now,  the  statute  prescribes,  and  the  gentleman  will  find  it  in  the 
Code  of  Criminal  Procedure,  that  the  presiding  officer  of  the  Court 
of  Impeachment  shall  be,  first,  the  Lieutenant-Governor,  unless  he 
is  impeached  or  is  absent,  and  second,  the  chief  judge  of  the  Court 
of  Appeals,  or  in  the  absence  of  both  of  these  officers,  then  the  court 
itself  shall  select  a  presiding  officer  for  the  time  being.  And  the 
Code  further  provides,  that  when  articles  of  impeachment  are  pre- 
ferred against  any  officer,  he  shall  cease  to  perform  the  functions  of 
his  office  until  the  question  of  the  impeachment  is  disposed  of  by 
the  court.  And  it  provides  further  that  when  the  Assembly  prefers 
articles  of  impeachment  against  the  Lieutenant-Governor.  it  is  the 
duty  of  that  body  to  notify  the  Senate  at  once,  so  that  it  may  select  a 
president  pro  tcm.  The  practice  in  this  respect  is  regulated  fully  by 
the  Code  of  Criminal  Procedure.  So  that,  as  the  Constitution  now 
stands,  a  hostile  Assembly  could  deprive  the  Senate  of  its  constitu- 
tional presiding  officer,  and  provide  for  the  election  of  another  by 


August  15.]  CONSTITUTIONAL  CONVENTION.  489 

simply  preferring  articles  of  impeachment  against  the  Lieutenant- 
Governor.  This  amendment  providing  for  the  election  of  a  presid- 
ing officer,  a  president  pro  tern,  of  the  Senate,  in  the  case  of  the 
impeachment  of  the  Lieutenant-Governor,  simply  puts  into  the  Con- 
stitution what  is  now  a  statutory  provision.  I  had  the  privilege  of 
examining  the  draft  of  the  report  of  the  Judiciary  Committee,  and  I 
understand  that  that  committee,  in  revising  the  section  relating  to 
the  Court  of  Impeachment,  has  put  into  that  section  that  part  of  the 
Code  which  provides  that  any  officer,  after  articles  of  impeachment 
are  preferred  against  him,  shall  cease  to  perform  the  functions  of 
his  office  until  the  question  is  disposed  of  by  the  court.  Now,  in 
view  of  the  statutory  provisions  for  the  organization  of  the  court, 
and  the  present  constitutional  provisions,  I  do  not  see  the  force  of 
this  objection  made  by  the  gentleman  from  Seneca  (Mr.  Hawley). 
It  seems  to  me  this  constitutional  provision  as  it  now  stands  is  emi- 
nently proper,  and  that  this  motion  of  the  chairman  of  the  committee 
ought  to  prevail. 

Mr.  Cassidy  —  Mr.  Chairman,  I  move  the  previous  question. 

The  Chairman  —  The  gentleman  is  out  of  order.  The  previous 
question  cannot  be  put  in  Committee  of  the  Whole.  The  question 
recurs  upon  the  motion  of  the  gentleman  from  Cattaraugus  that  the 
committee  now  rise,  report  this  proposition  to  the  Convention,  and 
recommend  its  passage. 

The  Chairman  put  the  question  on  the  motion  of  Mr.  Vedder,  as 
stated  by  the  Chair,  and  it  was  determined  in  the  affirmative. 
Whereupon  the  committee  rose,  and  the  President  resumed  the 
chair. 

Mr.  Acker  —  Mr.  President,  the  Committee  of  the  Whole  have 
had  under  consideration  proposed  constitutional  amendment 
(printed  No.  382),  entitled,  "  Proposed  constitutional  amendment  to 
amend  section  10  of  article  3  of  the  Constitution,"  have  gone 
through  with  the  same,  made  some  amendments  thereto,  and 
instructed  me,  their  chairman,  to  report  the  same  to  the  Convention 
and  recommend  its  passage.  I  therefore  make  that  motion. 

The  President  put  the  question  on  agreeing  to  the  report  of  the 
Committee  of  the  Whole,  and  it  was  determined  in  the  affirmative. 

The  President  —  The  amendment  goes  to  the  Committee  on 
Revision. 

Mr.  Mantanye  —  Mr.  President,  I  move  that  the  Convention  now 
take  a  recess  until  seven  o'clock  this  evening. 

The  President  —  Before  that  motion  is  put  the  Secretary  will 
announce  meetings  of  committees  for  this  afternoon. 


.;,.,,  REVISED  RECORD.  [Wednesday, 

The  Secretary  read  announcements  of  committee  meetings  for 
to-day. 

Mr.  Goeller  —  Mr.  President,  I  desire  to  be  excused  from  attend- 
ance to-morrow  on  account  of  important  business. 

The  President  put  the  question  on  the  request  of  Mr.  Goeller  to  be 
excused  from  attendance,  and  he  was  so  excused. 

Mr.  E.  R.  Brown  —  Mr.  President,  I  ask  to  be  excused  from 
attendance  to-morrow  and  next  day,  on  account  of  pressing  business. 

The  President  put  the  question  on  the  request  of  Mr.  Brown 
to  be  excused  from  attendance,  and  he  was  so  excused. 

Mr.  Carter  —  Mr.  President,  I  desire  to  be  excused  from  attend- 
ance on  Saturday  next. 

The  President  put  the  question  on  the  request  of  Mr.  Carter  to 
be  excused  from  attendance,  and  he  was  so  excused. 

The  President  put  the  question  on  the  motion  of  Mr.  Mantanye, 
and  it  was  determined  in  the  affirmative;  whereupon  recess  was 
taken  until  seven  o'clock  this  evening. 


EVENING  SESSION. 

Wednesday  Evening,  August  15,  1894. 

The  Constitutional  Convention  of  the  State  of  New  York  met  in 
the  Assembly  Chamber  in  the  Capitol  at  Albany,  N.  Y.,  August  15, 
1894,  at  8  P.  M. 

President  Choate  called  the  Convention  to  order. 

The  President  —  The  matter  under  consideration  to-night  is  the 
consideration  of  Mr.  Tucker's  proposed  constitutional  amendment 
(introductory  No.  194,  printed  No.  195). 

Mr.  Tekulsky  —  I  move,  Mr.  President,  that  we  take  a  recess  for 
half  an  hour.  There  seems  to  be  no  quorum  present,  and  no  one 
seems  ready  to  go  on. 

Mr.  Cochran  —  Mr.  President,  if  there  is  no  quorum  we  cannoc 
take  a  recess. 

Mr.  Hill  —  Mr.  President,  I  object  to  taking  a  recess,  unless  the 
time  be  extended  for  those  who  are  in  favor  of  sustaining  the  report 
of  this  committee. 

The  President  —  The  Chair  has  no  power  to  extend  the  time. 

Mr.  E.  A.  Brown  —  I  move  a  call  of  the  House. 

The   President  —  The  Secretary   will  call  the  roll  to  ascertain 


August  15.]  CONSTITUTIONAL  CONVENTION.  491 

whether  there  is  or  is  not  a  quorum  present,  the  Chair  being  in 
doubt. 

Mr.  Goodelle  —  Mr.  President,  I  ask  that  unanimous  consent  be 
given  that  the  call  of  the  roll  be  dispensed  with,  and  that  the  ques- 
tion of  a  quorum  be  not  raised.  I  ask  the  gentleman  who  made  the 
point  to  withdraw  it. 

Mr.  E.  A.  Brown  —  Mr.  President,  I  do  not  desire  to  take  the 
time  of  the  Convention  with  the  calling  of  the  roll,  and  I,  therefore, 
withdraw  my  motion. 

Mr.  Goodelle  —  Mr.  President,  I  move  that  we  proceed  with  the 
regular  order  of  business. 

Mr.  McClure  —  Mr.  President,  I  did  not  until  to-day  contemplate 
making  any  remarks,  certainly  not  indulging  in  anything  longer 
than  a  speech  of  a  few  minutes  upon  the  subject  now  before  the  Con- 
vention, and  I  would  decline  to  be  heard  at  all  were  it  not  for  the 
fact  that  having  been  a  member  of  the  Committee  on  Suffrage, 
before  which  committee  this  subject  has  been  pending  for  several 
months,  I  have  thought  it  perhaps  not  improper  that  I  should  make 
some  suggestions  by  way  of  an  explanation  of  the  position  which 
I  am  disposed  to  take  upon  the  pending  question.  As  I  understand 
this  question,  Mr.  President,  it  is  whether  we  shall  abdicate  the 
functions  and  the  duties  which  have  been  put  upon  us  by  the  people 
of  the  State  of  New  York  in  regard  to  the  question  of  woman  suf- 
rage,  or  retain  the  responsibility  and  discharge  it,  the  same  as  in 
respect  to  every  other  matter  which  comes  before  us  as  delegates 
to  this  Convention.  The  great  important  article  concerning  the 
judiciary  of  the  State,  the  important  matter  of  canals,  the  matter 
of  the  preservation  of  the  State  forests,  of  our  charities  and  of  edu- 
cation, of  the  government  of  the  State,  are  deemed  of  sufficient 
importance  by  the  members  of  this  Convention,  so  far  as  I  have 
heard,  that  the  Convention  shall  act  in  accordance  with  the  spirit  of 
the  act  of  the  Legislature  calling  this  Convention  together,  and 
decide  upon  the  amendments  which  are  to  be  submitted  to  the  peo- 
ple bearing  upon  those  subjects,  carrying  with  them  the  approbation 
of  this  Convention.  I  cannot  appreciate  the  consistency  which  actu- 
ates the  advocates  of  the  proposition  now  before  the  House  with 
reference  to  woman  suffrage.  Either  the  question  of  woman  suf- 
frage is  an  important  question,  Mr.  President,  equalling  in  gravity 
and  in  responsibility,  so  far  as  it  weighs  upon  the  members  of  this 
Convention,  the  great  subjects  to  which  I  have  referred,  or  it  is 
not.  If  it  is  not  of  great  importance,  if  it  is  not  a  subject  so  sacred 
as  it  has  been  represented  to  us  as  being,  then  the  time  of  this  Con- 


492  REVISED   RECORD.  [Wednesday, 

vention  should  not  be  taken  up  with  any  suggestion  or  recommenda- 
tion that  the  matter  should  be  submitted  to  the  people  for  their 
decision.  If  it  is  an  important  question,  ranking  with  and  going 
side  by  side  with  those  to  which  I  have  referred,  then  the  judgment, 
the  discretion,  the  action  of  this  Convention  should  be  had  upon  it, 
and  if  submitted  to  the  people  with  the  amendments  proposed  by 
the  Convention  on  canals,  government  of  the  State,  judiciary,  cities 
and  other  important  questions,  it  should  have  attached  to  and 
connected  with  it  and  scaled  rpon  it  the  positive  approbation  of  the 
delegates  of  this  Convention.  Mr.  President,  this  is  not  a  new 
question,  entitled  to  be  taken  and  treated  in  a  way  different  from 
the  other  questions  that  are  presented  to  us.  This  year  of  our  Lord 
1894  is  not  the  first  year  in  which  the  suggestion  that  suffrage 
should  be  given  to  women  has  been  heard.  It  is  a  subject  that  has 
been  presented  to  the  Legislatures  of  this  State  for  many  years, 
and  action  by  those  Legislatures  looking  towards  an  amend- 
ment to  the  Constitution  has  been  sought;  and  I  do  not  remember 
within  my  time  that  there  has  ever,  in  the  years  that  have  gone, 
been  such  an  uprising  of  the  people  of  this  State  in  favor  of  woman 
suffrage  as  called  for  extraordinary  action  on  the  part  of  any  legis- 
lative body.  And  this  is  extraordinary  action  on  our  part  that  is 
asked.  We  were  not  elected,  Mr.  President,  for  the  purpose  of 
receiving  suggestions  from  portions  of  the  public  of  the  great  State 
and  submitting  those  suggestions  to  the  people  without  action  deci- 
sive and  positive  on  our  part.  The  act  which  brought  this  body 
together  provides  that  we  shall  submit  to  the  great  people  who  are 
our  constituents,  not  queries,  not  conundrums,  but  shall  submit 
amendments,  proposed,  not  by  people  sending  up  petitions  here,  but 
proposed  by  us. 

Mr.  Root —  Will  the  gentleman  give  way  for  a  moment?  Mr. 
President,  I  raise  the  question  of  no  quorum.  There  is  not  a  quorum 
present. 

The  President  —  That  has  been  raised  and  withdrawn.  The 
Chair  rules  that  Mr.  McClure  is  in  order. 

Mr.  Root  —  I  wish  the  members  of  the  Convention  to  listen  to 
anything  that  the  gentleman  from  New  York  has  to  say.  I  think 
he  is  entitled  to  it. 

The  President  —  The  President  will  enforce  the  orders  of  the 
Convention  if  he  has  the  power  to  do  so.  Mr.  McClure  has  the 
floor. 

Mr.  McClure  —  I  was  saying,  Mr.  President,  that  we  were  not 
elected  for  the  purpose  of  avoiding  the  full  performance  of  6ur 


August  15.]  CONSTITUTIONAL  CONVENTION.  493 

duties.  We  might  as  well,  if  this  proposition  now  before  the  Con- 
vention is  carried,  adjourn;  allow  the  clerk  to  receive  propositions 
and  proposed  amendments,  have  them  duly  printed  and  submitted 
to  the  people  for  their  action,  without  any  action  being  had  pro  or 
con  upon  the  merits  of  such  propositions  by  this  Convention.  I 
have  taken  occasion,  Mr.  President,  once  or  twice  in  my  place, 
to  urge  upon  this  Convention  that  we  should  not  present  any  propo- 
sition looking  to  the  amendment  of  the  Constitution  of  this  State 
unless  there  accompanied  it  the  endorsement  of  a  large  proportion 
of  the  members  of  this  body.  Not  alone  a  bare  majority,  but  such 
a  vote  as  would  assure  the  people  of  this  State  that  the  wisdom,  the 
industry  and  the  intelligence  of  the  Convention  had  been  exercised 
upon  the  proposition  and  the  full  endorsement  of  the  Convention 
accompanied  it.  I  think  the  people  of  this  State  have  the  right  to 
expect  from  us  that  we  shall  take  the  responsibility  of  determin- 
ing whether  woman  suffrage  is  a  wise  thing  to  be  engrafted  upon 
the  laws  of  this  State,  or  not;  and  I,  for  one,  Mr.  President,  do  not 
desire  to  avoid  any  responsibility.  My  convictions  are  clear  and 
settled  upon  this  question.  I  have  never  had  any  doubt  about  the 
propriety  of  my  action  in  this  regard.  If  I  believed  that  woman 
suffrage  is  a  proper  measure,  I  would  be  ready  to  say  it  by  voting  to 
strike  out  from  the  Constitution  the  word  "  male."  As  I  do  not 
believe  that,  as  I  am  not  prepared  to  go  to  that  length,  I  am  not  will- 
ing to  shelter  myself  in  safety  behind  a  proposition  which  enables 
me  to  say  that  I  have  not  taken  any  position  upon  the  question,  and 
that  I  have  submitted  the  responsibility  to  the  people,  who  have  not 
asked  me  to  submit  it  to  them.  The  proposition  relative  to  woman 
suffrage  before  the  people  when  we  were  elected  was,  should  there 
be  granted  woman  suffrage  or  not?  And  the  Convention  was 
elected  to  in  part  positively  determine  whether  it  would  recommend 
woman  suffrage  or  not.  We  were  not  elected  to  say  that  we  would 
dodge  the  question  and  submit  it  to  the  people;  we  were  not  elected 
to  say  that  we  had  no  convictions  and  no  opinions  upon  the  ques- 
tion; and  I  consider  that  we  are  avoiding  our  duty  when  we  seek 
to  shelter  ourselves  behind  this  referendum  proposition. 

That  brings  me,  Mr.  President,  to  the  question  which  is  behind 
it  all,  and  I  am  prompt  to  declare  that,  in  my  judgment,  woman 
suffrage  should  riot  be  engrafted  upon  the  Constitution  at  this  time. 
Suffrage  is  not  a  right.  The  right  of  suffrage  does  not  rest  in  any- 
one. It  is  an  obligation;  it  is  a  trust;  it  is  a  duty,  which  the  State, 
when  it  thinks  it  wise,  imposes  upon  its  citizens;  and  the  citizens, 
who  have  the  duty  imposed  upon  them  of  deciding  whether  or  not 
it  shall  be  given,  must  perform  that  duty  intelligently,  influenced  in 


494  REVISED  RECORD.  [Wednesday, 

their  action  by  their  knowledge  of  the  subject  and  their  convictions 
as  to  whether  or  not  it  will  be  for  the  best  interest  of  the  State  to 
grant  that  suffrage.  I  believe  that  it  would  be  unwise  at  this  time 
to  say  to  the  woman  population  of  this  State  that,  "  You  shall  be, 
whether  you  see  fit  or  not,  whether  you  desire  it  or  not,  you  shall 
be  invested  with  this  duty  of  exercising  the  right  of  suffrage." 
Why,  Mr.  President,  the  last  time  that  I  made  any  set  remarks  upon 
this  floor,  it  was  in  opposition  to  the  proposition  made  in  this  Con- 
vention, in  all  soberness,  that  the  male  citizen  should  be  coerced 
into  and  be  compelled  to  exercise  the  right  of  suffrage;  that  the 
State  should  take  into  its  hands  the  operation  of  his  conscience  in 
the  matter  of  voting  and  should  say  to  him  that  in  a  political  cam- 
paign, whether  he  conceded  the  propriety  of  the  election  of  either 
one  or  two  candidates  or  not,  that  he  must,  by  reason  of  his  obliga- 
tion to  the  State,  see  to  it  that  he  deposited  his  vote  for  either  one 
of  them,  or  lose  the  right  of  franchise;  and  yet,  shortly  after  that 
occasion,  we  were  asked  to  pass  an  amendment  to  the  Constitution 
which  contemplates  that  another  large  body  of  our  citizens  shall  be 
compelled,  in  self-defense,  perhaps,  or  in  the  performance  of  a  sol- 
emn duty,  to  exercise  the  right  of  suffrage.  Mr.  President,  I  believe 
that  the  women  of  this  State  do  not  desire  that  this  duty,  this  obliga- 
tion, shall  be  thrust  upon  them.  I  have  not  in  my  own  life,  in  my 
own  business  circle,  in  my  own  social  circle,  met  any  woman  who 
desires  it.  Of  course,  there  are  petitions  here.  Petitions  can  be 
gotten  for  any  purpose  whatever,  to  any  extent  that  the  ingenuity,  the 
industry  and  the  persistency  of  manhood  or  womanhood  can  go; 
but  many  of  the  people,  no  doubt,  who  have  signed  these  petitions, 
have  signed  them  as  a  relief  from  the  persistency  of  those  who 
sought  signatures;  and  the  great  body  of  women  of  this  State,  the 
wives,  the  mothers,  the  daughters,  those  who  form  part  of  and  beau- 
tify the  home  circle,  so  far  as  my  knowledge  goes,  do  not  want,  and 
would  consider  it  a  mortification,  an  annoyance,  almost  a  degrada- 
tion, to  be  called  upon  to  exercise  the  right  of  suffrage.  Because, 
Mr.  President,  it  is  not,  as  some  of  my  friends  have  said  who  favor 
this  amendment,  the  mere  dignified  going  to  the  ballot-box  and 
placing  in  it  a  ticket  —  that  is  not  a  fair  and  intelligent  exercise  of 
the  right  of  suffrage  or  a  performance  of  the  obligation  any  more, 
on  the  part  of  a  woman,  than  of  a  man;  but  the  proper  performance 
of  the  duty  requires  that  there  shall  precede  the  act  of  depositing 
the  ballot,  the  attendance  at  the  convention  and  the  caucus,  the 
taking  part  in  the  selection  of  the  candidates.  Are  the  women  of 
this  State  who  desire  that  this  trust  shall  be  confided  to  them  willing 
simply  to  vote  for  the  candidates  that  the  men  shall  present' to  them, 


August  15.]  CONSTITUTIONAL  CONVENTION.  495 

or  do  they  propose,  Mr.  President,  that  they  shall  exercise  intelli- 
gently and  to  the  full  the  obligation,  the  trust  and  the  duty  which 
will  be  put  upon  them  if  suffrage  be  given  to  them?  If  men  are 
indifferent  and  indisposed  to  the  full  performance  of  their  duty  in 
going  to  the  caucus,  convention  and  ballot-box,  manning  the  polls, 
canvassing  for  delegates,  seeking  the  suffrage  of  the  citizens,  how 
can  women,  real  refined,  retiring  women,  be  expected  to  welcome 
the  performance  of  such  a  duty?  It  is  because  woman  does  not 
desire,  will  not  perform,  this  duty  and  this  obligation  to  the  full,  and, 
therefore,  ought  not  to  possess  the  right,  and  with  it  the  duty  of 
exercising  the  suffrage,  that  I  am  indisposed  at  this  time  to  give  to 
them  that  right.  It  is  said  that  we  are  flooded  with  petitions,  and 
that  a  great  many  people  come  to  this  chamber  anxious  that  this 
boon  shall  be  given  to  woman.  Mr.  President,  I  have  noticed  in 
the  city  of  New  York  that  the  women  who  favored  female  suffrage, 
speaking  in  the  different  districts  in  the  city,  were,  without  excep- 
tion, the  same  speakers,  the  same  half  dozen;  ten  or  twelve  ladies 
enlisted  in  this  cause  moved  about  New  York  city  like  a  judge  in  the 
olden  days  on  his  circuit,  issued  certificates  to  the  effect  that, 
speeches  having  been  delivered  by  these  ladies,  the  meetings 
resolved  that  the  delegates  representing  the  several  districts  should 
be  requested  to  vote  for  woman  suffrage.  I  have  not  seen  in  this 
chamber,  asking  for  this  privilege,  any  but  the  faithful  few.  I  made 
some  remarks  this  morning,  which  I  intended  to  apply  solely  to  the 
question  of  woman  suffrage,  and  I  repeat  that  since  this  Conven- 
tion met  the  most  persistent  attempts  have  been  made  to  induce  the 
members  of  this  Convention  to  agree  to  the  amendment  desired;  and 
it  did  occur  to  me,  Mr.  President,  that  if  woman  could  be  so  persis- 
tent in  seeking  within  the  halls  of  this  chamber,  in  the  seats  of  dele- 
gates, in  the  aisles  and  corridors,  this  boon  of  woman  suffrage,  what 
would  happen  to  us  when  women  so  persistent  should  have  rights 
to  seats  in  the  Legislature,  would  be  great  influences  and  factors  in 
conventions?  I  only  find,  Mr.  President,  a  select  few  anxious  for 
woman  suffrage.  I  do  not  find  the  body  of  men,  or  the  body  of 
women  of  the  State,  to  any  great  extent,  desirous  or  willing  to  put 
upon  women  the  burthen  of  the  performance  of  this  duty;  and, 
therefore,  upon  the  main  question  —  and  I  do  not  hesitate  to  reach 
it  at  once  —  I  am  not  in  favor  of  submitting  this  question  to  the 
people  as  to  whether  or  not  woman  suffrage  should  be  ordained.  I 
am  not  in  favor  of  saying  to  the  people  that  I  approve  of  woman 
suffrage,  either  directly  or  indirectly;  and  I  take  it  to  be  the  most 
courageous  act  of  a  member  of  this  Convention  to  promptly  say  that 
the  reason  why  he  is  not  willing  to  delegate  the  performance  of  his 


496  REVISED   RECORD.  [Wednesday, 

duty  to  someone  else  is,  in  the  first  place,  that  he  is  not  disposed 
favorably  towards  the  relief  desired;  and,  secondly,  he  is  not  willing 
to  avoid  the  performance  of  his  duty. 

Now,  Mr.  President,  I  have  spoken  longer  than  I  intended.  I  do 
not  wish  to  deprive  anyone  else  of  the  opportunity  of  being  heard  on 
this  side  of  the  question.  I  only  say  that  I  have  not  heard  any 
arguments  or  suggestions  sufficiently  strong  to  induce  me  to  devi- 
ate from  the  course  that  I  have  set  out  to  pursue  in  this  Convention. 
I  desire,  Mr.  President,  that  the  work  of  this  Convention  shall  be  a 
success.  I  have  sought  to  contribute  to  it,  and  shall  so  seek  to  the 
end,  so  far  as  lies  in  my  power.  I  want  a  complete  Constitution,  or 
a  complete  set  of  amendments  to  go  out,  behind  which  every  mem- 
ber can  take  his  stand  and  position,  and  say:  "This  was  in  part  my 
work,  and  I  propose  to  submit  it  to  the  people  of  the  State  for 
indorsement."  But  I  cannot  indorse  the  giving  of  woman  suffrage, 
and  I  think  it  the  best  performance  of  my  duty  to  refuse  to  vote  in 
favor  of  submitting  to  the  people  the  proposed  amendment. 
(Applause.) 

Mr.  Church  —  Mr.  President,  it  is  with  some  reluctance  that  I 
arise  in  my  place  to  occupy  the  time  of  this  Convention  with  remarks 
upon  this  great  question  of  woman  suffrage.  But  as  I  have  studi- 
ously avoided  in  the  past  occupying  the  time  with  talk,  I  may  be 
borne  with  for  a  very  few  moments. 

I  have,  Mr.  President,  very  firm  convictions  upon  this  question, 
and  the  people  of  the  Thirty-second  Senatorial  District,  composed 
of  the  counties  of  Chautauqua,  Cattaraugus  and  Allegany,  have 
spoken  in  no  uncertain  terms  upon  the  matter.  The  petitions  which 
are  filed  here  show  that  the  county  of  Chautauqua,  in  1893,  cast  a 
vote  of  13,993.  Five  thousand  eight  hundred  and  seventy  of  those 
voters  have  signed  this  petition  asking  for  the  word  "  male  "  to  be 
stricken  from  the  Constitution,  and  6,628  women  of  that  county. 
The  county  of  Cattaraugus  cast,  in  1893,  a  vote  of  11,514.  Four 
thousand  five  hundred  and  five  of  those  voters  have  signed  this 
petition,  and  6,210  women.  The  county  of  Allegany,  which 
county  I  more  nearly  represent,  has  spoken  still  more  strongly  upon 
this  question  through  this  petition.  That  county  cast,  in  1893,  a 
vote  of  7,759-  Three  thousand  nine  hundred  and  seventeen  of  those 
voters,  more,  than  half  of  them,  have  signed  this  petition  asking  that 
the  word  "  male "  be  stricken  from  the  Constitution,  and  5.019 
women.  I,  therefore,  feel  safe,  sir,  in  saying  that  the  county  of  Alle- 
gany is  fairly  committed  to  this  proposition.  It  has  been  asserted 
upon  this  floor,  at  least  before  the  committee  who  had  this  matter 
under  advisement,  that  it  is  fair  to  assume  that  those  who  have 


August  15.]  CONSTITUTIONAL  CONVENTION.  497 

failed  to  sign  this  petition  are  against  it.  I  am  credibly  informed,  sir, 
and  I  believe  it  to  be  a  fact,  and  state  it  as  such,  that  in  the  county 
of  Allegany  the  petition  against  this  proposed  amendment  was  as 
vigorously  circulated  as  was  the  petition  in  its  favor,  and  I  am 
informed  that  it  met  with  such  poor  success,  so  few  were  willing  to 
commit  themselves  upon  that  side  of  the  question,  that  that  petition 
has  not  been  filed  here.  I,  therefore,  think  it  safe  to  assert  that  not 
only  those  of  the  county  of  Allegany  who  have  signed  this  petition 
in  favor  of  striking  the  word  "  male  "  from  the  Constitution,  but 
those  also  who  did  not  sign  it,  cannot  be  said  to  be  against  it,  in 
view  of  the  fact  that  they  failed  to  sign  the  petition  against. 

Now,  sir,  I  desire  very  briefly,  if  I  am  able  to  do  so,  to  emphasize 
the  point  made  by  Mr.  Lauterbach,  and  alluded  to  by  Mr.  Titus,  in 
their  remarks  the  other  evening.  I  assert,  sir,  that  the  male  citizens 
of  this  State  have  brought  about  the  conditions  which  make  it  right 
and  just  for  women  now  to  demand  the  suffrage,  and  which  make  it 
unjust  and  tyrannical  for  men  now  to  refuse  it.  Whatever  theory 
may  have  held  when  our  government  was  organized  as  to  the  suf- 
frage, whatever  theories  may  be  held  now,  the  conditions  which 
exist  in  the  State  of  New  York  to-day  are  so  entirely  different  from 
the  conditions  which  existed  when  our  State  was  organized,  that 
those  theories  cannot  prevail,  it  seems  to  me.  When  the  common 
law  of  England  was  the  law  of  this  State,  and  married  women  had 
no  identity,  were  merged  in  their  husbands,  had  no  property  rights, 
it  might  well  be  said  that  they  had  no  reason  to  demand  the  suffrage. 
But,  sir,  beginning  in  1848,  the  male  citizens  of  the  State  of  New 
York,  not  at  the  clamor  of  women,  as  I  understand  it,  but  actuated 
by  a  sense  of  justice,  began  to  remove  the  disabilities  under  which 
women  labored  at  that  time.  Gradually,  from  that  time  on,  as  the 
years  went  by,  the  barriers  have  one  by  one  been  stricken  away, 
until  at  last,  in  1893,  I  believe,  the  last  impediment,  the  last  inequal- 
ity between  a  husband  and  wife  as  to  their  property  rights,  as  to 
their  control  over  children,  were  removed.  Now,  sir,  keeping 
abreast  of  this  movement,  which  has  enabled  women  to  go  out  into 
all  the  avenues  that  men  occupy  in  the  world,  enabled  them  to 
acquire  property  in  all  the  methods  by  which  men  acquire  property, 
the  doors  of  education  have  been  opened  to  them,  and  to-day  no 
man  claims  but  that  the  women  of  the  State  of  New  York  stand  the 
peers  of  men  in  respect  to  education,  as  they  stand  his  equal  in 
respect  to  property  qualifications ;  and,  I  believe,  it  is  conceded  that 
they  are  his  superiors  in  point  of  moral  excellence  and  all  those 
attributes  which  have  been  extolled  here  by  the  opponents  of  this 
32 


498  REVISED  RECORD.  [Wednesday, 

movement.  Now,  sir,  we  propose,  after  having  done  all  this  for 
woman,  after  having  brought  about  the  conditions  which  make  it 
absolutely  necessary  for  her,  as  it  is  for  man,  to  have  the  ballot  for 
the  protection  of  her  rights,  we  propose  to  stop  here  and  refuse  her 
the  one  thing  that  all  men,  all  classes  of  men,  in  this  country  have 
demanded  and  received  for  their  protection. 

Again,  sir,  it  has  been  asserted  that  the  burden  of  proof  rested 
upon  woman  to  show  that  if  the  ballot  is  conferred  upon  her  it  will 
result  in  good  to  the  State.     Mr.  President,  I  deny  that  proposition. 
I  do  not  believe  that  it  is  true  that  this  great  body  of  women  should  be 
called  upon  now  to  show  conclusively  or  otherwise,  that  the  exten- 
sion of  suffrage  to  them  will  bring  good  to  the  State.     Was  that 
question  asked  of  the  white  male  citizens  of  the  State  of  New  York 
when  the  property  qualification  was  removed  from  them?     Was  it 
asked  when  the  property  qualification  was  removed  from  the  col- 
ored voters  of  the  State?    Was  it  asked  when  the  suffrage  was  con- 
ferred upon  four  millions  of  ignorant  black  men  just  released  from 
the  bondage  of  slavery?     No,  sir.     In  every  instance,  I  believe,  and 
I  say  it  to  be  a  fact,  the  suffrage  was  conferred  upon  those  classes 
of  people,  not  upon  the  theory  that  it  would  confer  a  benefit  upon 
the  State,  but  that  it  was  absolutely  necessary  for  the  protection  of 
those  persons  themselves  in  the  rights  that  had  been  conferred  upon 
them.     I  say  that  that  is  true  of  women  to-day.     Situated  as  they 
now  are,  they  need  the  ballot  as  much  as  men  need  it ;  it  is  as  much 
their  right  to  demand  it.     But,  sir,  if  it  be  conceded  that  the  burden 
does  rest  upon  the  women  to  show  that  the  extension  of  the  suf- 
frage to  them  would  result  in  good  to  the  State,  I  believe  it  is  suscep- 
tible of  proof.     I  think  it  is  conceded,  in  fact,  it  has  been  practically 
asserted  upon  the  floor  of  this  chamber,  that  women  are  more  moral, 
that  they  are  more  God-fearing,  that  they  are  more  conscientious 
than  men.     If  that  is  true,  then  the  next  proposition  which  I  shall 
state  must  be  beyond  dispute  —  it  must  be  true  that  in  a  republic  the 
people  who  take  part  in  the  affairs  of  the  government  must  influence 
its  destiny  along  the  lines  of  their  nature.     If  the  two  propositions 
are  true,  what  other  conclusion  can  be  reached,  sir,  than  that  the 
extension  of  the  suffrage  to  this  great  body  of  citizens  will  result  in 
benefits  to  the  State?     Now,  sir,  in  conclusion,  I  assert  that  if  one 
million  men  of  the  State  of  New  York,  to  whom  the  suffrage  had 
been  denied  during  all  the  years  that  this  State  has  been  in  existence, 
were  situated  as  these  women  are  situated,  and  should  present  to  this 
Convention  a  petition,  not  of  600,000,  but  of  even  100,000,  the  mem- 
bers of  this  Convention  would  not  dare  —  on  their  lives  they  would 
not  dare  —  to  refuse  to  confer  the  suffrage  upon  them  or  to  submit 


August  15.]  CONSTITUTIONAL  CONVENTION.  499 

the  question  to  the  people  of  this  State  to  pass  upon  it.  And  I 
assert,  sir,  without  reference  to  any  of  these  matters  of  expediency  — 
my  time  is  too  short  to  go  further  —  that  we  have  no  right  to  refuse 
to  send  this  question  to  the  people  of  the  State  of  New  York  to 
pass  upon  because  of  any  questions  of  expediency,  or  political  or 
party  policy.  (Applause.) 

Mr.  Phipps  —  A  number  of  proposed  constitutional  amendments 
have,  as  we  know,  been  submitted  to  this  Convention,  and  in  turn 
referred  to  the  Committee  on  Suffrage,  and  not  even  one,  in  the 
judgment  of  the  committee,  has  seemed  to  have  sufficient  merit  to 
permit  them  as  a  committee  to  submit  it  to  this  Convention.  Of  all 
the  proposed  amendments,  this  one,  I  think,  is  entitled  to  considera- 
tion by  this  Convention  in  Committee  of  the  Whole,  and  I  trust  it 
may  not  be  said  of  this  Convention  that  on  this  question,  which  has 
called  forth  the  petition  of  600,000  people  of  this  State,  we,  the  dele- 
gates of  the  people,  have  allowed  this,  as  well  as  other  proposed 
amendments,  to  be  decided  by  the  committee  alone. 

It  is  not  my  purpose  or  desire  to  speak  at  length  on  this  import- 
ant subject,  nor  do  I  feel  that  mere  words  at  this  time  will  prove  of 
effect.  I  feel  it  my  duty,  however,  as  a  member  of  this  body,  and 
with  personal  views  on  the  justice  of  the  submission  of  this  proposi- 
tion, that  I  should  add  my  voice  and  influence  in  advocating  this 
measure. 

The  discussion  has  been  extended,  and  able  arguments  presented, 
and  at  this  time  it  is  unnecessary  for  me  to  discuss  the  merit  as  to 
the  extension  of  suffrage  to  that  portion  of  the  people  of  the  State, 
who,  while  permitted  to  pay  their  proportion  of  the  expenses  of  our 
government,  have  no  choice  whatever  in  saying  who  shall  and  who 
shall  not  disburse  the  money  raised  by  taxation  upon  their  prop- 
erty. They  need  no  champion  in  me,  for  they  themselves  have  pre- 
sented their  case  in  a  clear,  logical  light,  much  more  ably  than 
I  would  ever  attempt. 

I  desire  to  ask  your  indulgence  for  a  few  moments  to  a  con- 
sideration of  this  subject  as  it  appears  to  me.  Permit  me  to  draw 
a  picture,  or,  rather,  a  comparison  of  the  difference  between  peti- 
tions—  the  petitions,  on  the  one  hand,  of  600,000  to  this  Convention 
meeting  in  the  interests  of  the  people  of  the  State  and  not  to  con- 
vene again  for  twenty  years,  and  the  petition,  on  the  other  hand,  of 
say,  less  than  fifty  citizens  of  a  town,  praying  that  questions  of 
minor  importance  be  placed  before  the  people,  not  at  a  general 
election,  but  at  a  special  meeting  of  the  voters  of  the  town  called 
for  that  purpose.  To-night  there  are  being  counted,  in  the  town 
from  which  I  hail,  the  ballots  of  the  voters  on  a  question  of  appro- 


500  REVISED  RECORD.  [Wednesday, 

priating  a  certain  sum  of  money  for  road  improvements,  and  the 
decision  as  to  the  sale  of  a  certain  stretch  of  sandy  beach.  This 
special  meeting  of  the  voters  of  the  town  was  called  upon  the  peti- 
tion of  less  than  fifty  citizens,  and  has  been  held  at  an  estimated 
expense  of  $2,500. 

On  the  other  hand,  we,  the  delegates  of  the  people  of  the  State 
of  New  York,  in  Convention  assembled,  have  had  presented  to  us 
a  petition  of  the  people  of  this  State  to  the  number  of  hundreds 
of  thousands,  praying  that  that  which  is  now  and  has  been  for  years 
a  burning  question  be  presented  to  the  people  for  their  decision. 
The  advocates  of  this  measure  have,  in  season  and  out  of  season, 
presented  their  case  and  ably  argued  its  merits,  and  now  ask  that 
boon  which  we  can  grant  of  going  before  what  I  consider  a  higher 
tribunal  than  this  Convention,  the  voice  of  the  sovereigns  of  the 
State. 

It  is  claimed  that  if  we  submit  this  question  to  the  people,  we 
endanger  the  work  in  which  we  are  engaged;  that  is  to  say,  that 
the  people  will  rise  in  their  might  and  rebuke  us  for  the  crime  of 
countenancing  the  cause  of  woman  suffrage  by  submitting  to  the 
people  to  say  whether  they  shall  have  it  or  not. 

I  give  the  people  of  the  Empire  State  credit  for  too  much  good 
common  sense  to  think  for  a  moment  that  they  would  take  any 
such  action.  We  will,  I  believe,  present  to  the  people  this  year  a 
revised  Constitution  which  will  merit  and  meet  with  their  approval, 
and  to  say  that  the  judgment  of  the  voters  upon  the  revised  Consti- 
tution will  be  influenced  by  the  submission  of  a  separate  proposi- 
tion is  poor  compliment,  indeed,  to  their  intelligence. 

For  sake  of  argument  at  this  moment,  let  us  admit  that  there  is 
merit  in  their  claim.  Cannot  we  also  imagine  that  by  ignoring  the 
petition  of  600,000,  we  place  ourselves  and  our  work  in  a  position 
not  altogether  enviable?  Have  the  petitioners  no  voice,  no  influ- 
ence? Will  they,  after  years  of  earnest  labor,  submit  without 
reproof  to  our  adverse  action?. 

The  number  of  petitioners  has  been  attacked  on  the  ground  that 
many  were  not  honest  in  their  signatures;  that  is,  they  did  it  to 
oblige,  they  did  it  without  thought,  or  they  have  changed  their 
views.  I  am  perfectly  willing  to  cut  down  the  number  for  argument 
sake,  and  so  we  may  say  that  one-half  did  not  know  what  they  were 
doing,  and  to  help  along  still  further,  say  that  one-half  of  the  300,000 
have  changed  their  views  as  expressed  in  their  petition;  we  must 
admit  that  the  balance  did  know  what  they  wanted  and  were  intelli- 
gent beings.  I  hold  that  if  this  number  desired  to  exercise  the 
influence  which  they  possess,  they  could  and  would  control  a  great 


August  15.]  CONSTITUTIONAL  CONVENTION.  501 

number  to  reprove  us  for  ignoring  the  petition  of  their  greater  num- 
ber. I  do  not  say  they  would  seek  to  use  their  influence  in  this 
direction ;  neither  will  I  admit  that  voters  of  this  State,  on  the  other 
hand,  would  take  the  same  course  to  rebuke  us  for  submitting  the 
proposition.  But  I  do  say  that  if  there  is  any  merit  in  the  argument 
for  one  side,  there  is  the  same  weight  of  argument  on  the  reverse 
side  of  the  proposition. 

To  borrow  words:  "  This  is  a  condition,  not  a  theory,  which  con- 
fronts us."  It  would,  no  doubt,  have  been  more  to  the  peace  and 
comfort  of  this  Convention  had  the  subject  not  been  introduced, 
but  introduced,  as  it  has  been,  we  should  meet  it  manfully,  without 
fear  of  punishment  or  hope  of  reward.  Looking  at  this  subject  of 
submission  to  the  people  in  its  practical  light,  as  it  is  given  me  to 
comprehend,  I  contend  that  we  should  not  ignore  the  prayers  of 
these  petitioners,  but  present  their  case  for  the  decision  of  the  people 
of  the  State,  and  whatever  their  decision  may  be,  I  am  convinced 
that  it  will  be  for  the  good  of  all  concerned.  (Applause.) 

Mr.  Fraser  —  Mr.  President,  I  have  listened  intently  to  the 
remarks  of  each  speaker  who  has  addressed  this  Convention  upon 
the  subject  now  under  consideration,  expecting  to  hear  some  rea- 
sons which  were,  at  least,  plausible  why  this  amendment  should 
not  be  submitted  to  the  people.  Having  observed  the  strong  senti- 
ment in  the  Convention  against  the  submission  of  this  proposition, 
it  was  but  natural  to  expect  that  reasons,  having  some  foundation  in 
logic  and  in  justice,  could  be  advanced  in  support  of  this  sentiment. 
But,  if  any  such  reasons  have  been  given,  they  have  escaped  me. 

We  have  upon  the  face  of  this  proposition,  standing  out  in  bold 
relief,  unanswered,  and,  as  I  have  come  to  believe,  unanswerable, 
the  fundamental  doctrine  upon  which  this  government  is  based,  that 
all  just  power  is  derived  from  the  consent  of  the  governed. 
And  can  it  be  maintained,  in  the  face  of  this  principle,  embodied 
in  our  Declaration  of  Independence,  for  which  the  revolutionary 
heroes  fought,  that  laws  which  control  the  action  of  every  citizen, 
which  impose  a  tax  upon  every  property  holder  in  our  common- 
wealth, but  in  the  enactment  of  which  one-half  of  our  population 
has  absolutely  no  voice,  derive  their  just  power  from  the  consent 
of  the  governed?  We  have  listened  to  learned  arguments  here, 
maintaining  that  the  right  of  suffrage  is  not  a  natural  right,  but  is 
a  privilege  accorded  by  the  government  to  certain  of  our  citizens. 
But  who  in  this  country  constitute  the  government?  This  is  a  gov- 
ernment of  the  people,  by  the  people,  and  not  until  a  majority  of 
the  whole  people  shall  impose  a  limitation  upon  the  right  to  vote, 
will  that  limitation  have  any  foundation  in  right  or  justice. 


502  REVISED  RECORD.  [Wednesday, 

I  am  a  Republican  by  inheritance  and  by  conviction,  and  it  has 
been  urged,  in  the  private  discussions,  at  least,  relative  to  this  mat- 
ter, that  the  responsibility  for  the  submission  of  this  amendment 
by  this  Convention  will  rest  with  the  Republicans,  they  being  the 
majority  here,  and  that  it  will  injure  the  party  —  that  it  is  not  good 
party  policy  to  let  this  matter  go  to  the  people  at  this  time.  In 
answer  to  this  allow  me  to  say  that  I  have  yet  to  learn  of  the  Repub- 
lican party  sacrificing  principle  to  policy.  Our  party  at  its  incep- 
tion was  the  very  embodiment  of  principle,  and  of  the  very  principle 
which  is  here  involved,  that  of  liberty  and  equality  before  the  law. 
It  was  Pilate  who,  from  policy,  washed  his  hands  before  the  people 
and  permitted  the  murder  of  the  Man  of  Galilee,  an  example  we 
should  have  no  ambition  to  emulate.  But  I  do  not  understand  that 
the  party  lines  are  drawn  upon  this  issue  or  that  it  can  be  made  a 
party  matter;  for  it  enters  every  home,  and  should  appeal  to  the 
sense  of  justice  which,  I  have  faith  to  believe,  can  be  found  some- 
where in  the  heart  of  every  man.  If  this  matter  is  submitted,  it 
certainly  will  have  the  effect  of  calling  out  a  full  vote,  and  so  obtain- 
ing an  expression  of  all  our  citizens  upon  the  issues  and  candidates 
to  be  presented  at  the  coming  election,  and  this  we  do  not  fear. 
Again,  it  is  urged  that  many  of  the  best  women  of  the  State  do  not 
wish  the  right  of  franchise.  This  has  nothing  to  do  with  the  prin- 
ciple involved.  The  fact  that  there  were  those  in  revolutionary 
times  who  did  not  wish  to  dissolve  the  relations  with  the  mother 
country,  in  nowise  clouded  the  plain  principle  for  which  the  colonists 
contended.  And,  if  there  is  one  woman  within  the  confines  of  this 
State  who  desires  to  give  expression  to  her  judgment  at  the  ballot- 
box,  upon  the  living  issues  of  the  day,  it  is  manifest  injustice  to 
deprive  her  of  the  right.  We  have  heard  in  this  chamber  an  elo- 
quent and  just  characterization  of  those  men  who  do  not  care  to 
exercise  their  high  prerogative ;  and  when  woman  shall  be  accorded 
this  privilege,  either  now  or  hereafter,  for  we  nearly  all  concede 
that  the  time  is  coming,  then  strictures  will  be  entirely  proper  upon 
that  pseudo  delicacy  which  impels  some  who  are  bound  to  be  ladies, 
even  if  need  be  at  the  expense  of  their  womanhood,  to  say  they  do 
not  care  for  this  privilege.  Life  is  real,  life  is  earnest,  for  woman 
as  well  as  man,  and  when  the  ability  to  render  effective  aid  to  a 
right  cause  shall  be  placed  within  the  reach  of  the  purer  and  better 
half  of  mankind,  they  will  prove  recreant  to  the  God-given  senti- 
ments of  pity  and  mercy  and  love,  that  ever  swell  from  the  heart  of 
woman,  if  they  do  not  embrace  the  privilege,  and,  I  believe,  that  on 
all  matters  involving  moral  questions  they  will  be  found  eager  and 
anxious  to  exert  their  power,  for  they  are  ever  alive  to  right.  Go 


August  15.]  CONSTITUTIONAL  CONVENTION.  503 

through  the  jails  and  the  penitentiaries  and  the  State  prisons  of  our 
State,  and  you  will  find  that  the  vast  majority  of  the  criminals  are 
men;  go  through  the  churches,  and  you  will  find  the  vast  majority  of 
the  members  are  women.  And  where  you  find  a  woman  criminal, 
if  you  trace  her  history,  you  will  almost  invariably  find  that  the  hand 
of  a  man  guided  her  in  her  first  downward  step.  Many  of  the  most 
glorious  achievements  recorded  in  history  were  accomplished 
largely  through  the  instrumentality  of  women,  and  women  whose 
delicacy  and  refinement  have  never  been  questioned.  It  was  the  pen 
of  Mrs.  Stowe  that  gave  world-wide  entrance  to  the  cabin  of 
the  slave,  and  to  her  must  be  attributed  more,  perhaps,  than  to  any 
other  person  the  proud  distinction  of  awakening  the  great  moral 
upheaval  which  called  to  arms  the  hosts  of  the  North. 

"  All  through  the  conflict,  up  and  down, 
Marched  Uncle  Tom  and  old  John  Brown, 

One  ghost,  one  form  ideal, 
And  which  was  false,  and  which  was  true, 
And  which  was  mightiest  of  the  two, 
The  wisest  Sybil  never  knew, 
For  both  alike  were  real." 

It  was  largely  through  the  influence  and  counsel  of  Josephine 
that  Napoleon  the  First,  fixing  his  eye  upon  the  rugged  icy  steps  of 
the  Alps,  muttered:  "  It  is  not  probable,  it  is  barely  possible,"  gave 
the  command  "  Forward,"  and  in  a  few  weeks  his  cannon  thundered 
on  the  plains  of  Italy;  but  when  his  fame  became  world-wide,  he 
divorced  his  faithful,  loving  wife,  and  from  that  moment  the  star 
of  his  prosperity  began  to  wane,  until  at  last  it  sunk  in  the  far  dis- 
tant sea,  behind  a  lone,  barren  isle,  in  utter  darkness. 

Victoria,  Queen  of  England,  riding  in  state,  with  the  wealth  of 
immortelles  at  her  side  in  sacred  memory  of  her  honored  dead, 
furnishes  an  illustration  of  constancy  and  faithfulness  never  equalled 
by  man,  and  who  shall  say  that  when  her  reign  shall  cease  and  her 
noted  —  I  had  almost  said  notorious  —  son  shall  succeed  to  the 
throne,  his  accession  will  be  the  signal  for  an  uprising  which  shall 
herald  the  morning  sun  of  liberty? 

It  is  further  urged  that  as  woman  cannot  perform  military  service 
or  do  police  duty,  therefore,  she  is  not  entitled  to  the  ballot.  This 
argument  is  based  upon  the  assumption  that  brute  force  governs 
the  world.  There  was,  no  doubt,  a  time  when  this  was  the  fact, 
but  that  time  has  long  since  passed  away,  and  the  tendency  of  this 
age  is  toward  that  time  of  which  Tennyson  sings: 


504  REVISED  RECORD.  [Wednesday, 

"  Where  the  common  sense  of  most  shall  hold  a  fretful  realm  in  awe, 
And  the  kindly  earth  shall  slumber,  lapt  in  universal  law." 
Even  in  the  athletic  world  of  to-day  science  triumphs  over  simple 
strength.     Corbett  can  knock  Sandow  out  in  one   round.     Mrs. 
Cleveland,  miles  away,  with  her  finger,  touches  the  button  that  starts 
the  ponderous  machinery  at  Chicago,  and  there  is  a  suspicion  in  the 
minds  of  many  that  to  her  gentle  hand  might  well  be  committed 
the  guiding  of  the  ponderous  and  laborious  pen  of  her  illustrious 
husband. 

Another  reason  urged  is  that  the  bad  women  will  exert  a  power- 
ful influence  upon  the  ballot.  But  until  the  evil  women  are  more 
potent  than  those  of  the  mothers  and  the  wives  of  the  land,  this  argu- 
ment can  have  no  force. 

The  claim  that  polling  places  are  not  fit  places  for  women  to 
frequent  has  little  foundation  in  fact;  but  where  this  condition  does 
exist  the  introduction  of  woman  would  be  the  most  effective  remedy 
that  could  be  applied,  for  the  native  chivalry  of  the  American  man 
would  never  permit  at  the  polls  that  which  would  jar  roughly  upon 
the  sensibilities  of  their  sisters  and  their  mothers.  Does  anyone 
believe  that  the  scenes  of  riot  and  bloodshed  enacted  at  Gravesend, 
at  Troy  and  at  other  places  in  the  last  election  would  have  occurred 
if  there  had  been  women  present  at  the  polls? 

All  the  conditions  would  be  changed,  and,  where  riot  and  crime 
now  exist,  law  and  order  would  prevail.  And,  if  there  is  anything 
in  reason  and  justice,  in  present  conditions  or  in  the  signs  of  the 
times  to  indicate  that  the  ballot  should  be  withheld  from  woman,  I 
fail  to  see  it,  and  I  am,  therefore,  opposed  to  the  report  of  the  com- 
mittee. (Applause.) 

Mr.  Arnold  —  Mr.  President,  had  the  advocates  of  woman  suf- 
frage insisted  upon  the  Convention  striking  out  the  word  "  male  " 
from  the  Constitution,  their  proposition,  in  my  opinion,  would  have 
met  with  defeat.  They  have  wisely  modified  their  request  into  ask- 
ing for  a  separate  submission  of  the  vital  question,  shall  the  word 
"  male  "  be  stricken  from  the  Constitution?  No  question  then  arises 
as  to  what  our  individual  opinions  may  be  upon  the  merits  of  the 
subject;  we  can  only  differ,  if  at  all,  upon  the  interpretation  of  our 
duties  as  public  servants.  I  conceive  it  to  be  my  duty  in  this  case 
not  to  use  my  vote  arbitrarily  to  deprive  the  people  of  the  right 
to  pass  upon  this  important  question,  since  so  large  a  number  of  citi- 
zens of  the  State  have  asked  an  opportunity  to  let  the  people  decide 
it.  If  I  fail  to  correctly  understand  the  duty  with  which  I  am 
charged,  who  can  accuse?  Not  the  people,  for  to  them  I  leave  the 
determination.  Who  then,  only  those  who  are  opposed  to  woman 


August  15.]  CONSTITUTIONAL  CONVENTION.  505 

suffrage,  and  in  their  opposition  are  unwilling  that  at  some  time,  in 
some  manner,  the  women  may  go  to  the  jury,  composed  of  the 
voters  of  the  State,  and  there  submit  their  case?  To  deny  them 
this  opportunity  would  be  unjust.  It  may  not  be  entirely  out  of 
place  for  me  to  call  attention  to  some  facts  which  have  influenced 
my  opinion  that  an  extension  of  the  franchise  would  be  too  vast 
an  experiment  to  be  tried  at  this  time.  The  common  good  of  the 
people  must  be  the  first  incentive  for  this  or  any  other  political 
change,  and  the  burden  of  proof  is  upon  the  woman  to  show  that 
an  extension  of  the  suffrage,  which  shall  ignore  sexual  differences 
and  home  life  and  duties  and  compel  an  innovation  in  governmental 
policies,  shall  be  accepted.  Upon  the  question  of  common  good  no 
proof  can  be  obtained  of  any  value. 

Wyoming  has  been  referred  to  as  the  only  State  where  some  posi- 
tive evidence  has  been  procured  as  to  the  result  of  woman  suffrage. 
Bryce,  in  his  "  American  Commonwealth,"  speaking  of  elections 
in  Wyoming,  says,  that  from  a  trustworthy  source  he  learns  that 
"  after  the  first  excitement  is  over  it  is  impossible  to  get  respectable 
women  to  vote,  except  every  two  or  three  years  on  some  purely 
emotional  question,  like  prohibition  or  other  temperance  legisla- 
tion. The  effect  on  family  life  seems  to  be  nil,  certainly,  not  bad, 
but  after  a  year  or  two  it  is  found  that  the  women  of  the  lower  class 
are  those  that  most  regularly  go  to  the  polls." 

It  must  be  borne  in  mind  that  there  is  a  vast  difference  between 
the  character,  manner  of  life  and  other  conditions  of  the  people 
composing  the  State  of  Wyoming  and  those  composing  the  State 
of  New  York. 

The  experience  of  every  delegate,  who  is  at  all  familiar  with 
public  school  matters,  is  in  harmony  with  the  statement  that  women 
will  not,  to  any  great  extent,  exercise  the  right  of  suffrage,  if 
granted  to  them.  Since  1880,  when  they  were  given  the  right  to 
vote  for  school  trustees,  they  have  voted  so  infrequently  that  it  is  a 
rare  instance  to  have  a  single  vote  by  a  woman  at  school  meeting, 
and  without  any  positive  proof  then,  by  which  to  determine  the 
effect  of  woman  suffrage,  we  are  left  to  the  claims  of  the  suffragists 
themselves  as  to  the  supposed  advantages  of  more  than  doubling 
the  present  vote  of  the  State. 

A  newspaper  clipping  puts  the  matter  in  better  shape  than  I  can: 

"  The  men  of  New  York  have  been  tested  and  minutely  studied 
for  a  hundred  years.  Who  can  predict,  from  year  to  year,  how  they 
will  vote?  After  almost  every  recent  election  the  general  feelings 
has  been  one  of  surprise,  with  regard  to  the  outcome  of  all  these 
uncertainties.  And  yet  we  are  assured  that  when,  for  the  first  time, 


5o6  REVISED   RECORD.  [Wednesday, 

more  than  a  million  entirely  untrained  and  hitherto  uninterested 
women  are  called  to  the  polls,  we  shall  not  be  surprised  —  we  shall 
forsee  how  they  will  act  and  shall  know  that  their  actions  will  be 
distinctly  for  good.  We  should  not  know.  We  cannot  dare  to 
predict.  We  can  only  guess.  In  this  case  it  would  be  hard  to  over- 
estimate the  magnitude  of  the  risk.  It  would  mean  an  innovation 
of  unparalleled  significance,  with  regard  to  the  future  of  our  women 
and  our  men,  with  regard  to  our  political  course,  our  social  con- 
ditions and  the  status  of  the  home  and  family.  And  it  would  mean 
an  innovation  affecting  not  merely  our  State,  but  the  country  at 
large. 

No  restriction  is  placed  on  a  woman,  in  regard  to  business.  In 
every  position  she  may  be  found  in  increasing  numbers.  There  is 
no  calling  for  which  she  is  physically  fitted  in  which  she  is  repelled, 
and  all  this  has  been  done  without  politics,  and  done  by  and  for 
women  not  in  politics  and  who  do  not  wish  to  be. 

Whatever  may  be  said  by  the  advocates  of  woman  suffrage  rela- 
tive to  the  need  of  woman's  voting,  it  cannot  be  successfully  urged, 
and,  in  fact,  it  has  not  been  urged  very  strongly,  that  she  needs  the 
ballot  for  any  practical  purpose. 

Mr.  President,  I  believe  the  foundation  of  every  government 
must,  necessarily,  and  as  a  last  resort,  rest  in  force.  The  advocates 
of  woman  suffrage  undertake  to  ignore  this  proposition,  referring 
to  the  peace  congress  arbitration,  and  other  amicable  arrangements 
of  either  national,  State  or  individual  differences,  as  indicating  the 
tendency  of  modern  thought  to  drift  away  from  force  and  to  seek 
the  gentler  ways  of  peace. 

Proof,  however,  that  it  would  not  wholly  be  safe  to  disband  our 
armies  and  militia  and  to  resort  entirely  to  arbitration  has  been 
found  in  the  repeated  necessities  for  calling  on  armed  intervention, 
not  only  in  this  State,  but  elsewhere;  and  whether  it  be  always 
necessary  to  resort  to  arms  to  enforce  a  decree  of  State,  no  edict 
will  be  a  binding  force  on  the  minority,  unless  it  be  known  that  the 
majority  have  sufficient  strength  to  compel  obedience  to  their  man- 
date. It  is  an  undoubted  fact  that  women  are  physically  incapable 
of  carrying  into  execution  any  law  she  may  enact,  and  woman  suf- 
frage, under  certain  conditions,  becomes  government  by  women 
alone  on  every  occasion  where  a  measure  is  carried  by  the  aid  of 
women's  votes. 

Several  times  in  the  history  of  our  nation  a  vote  for  candidates 
has  been  conceded  a  declaration  of  war.  It  has  been  said,  suppose 
a  proposition  for  prohibition  in  some  form  was  before  the  people, 
a  majority  of  men  voted  against  it,  a  minority  of  men  for  it,  a 


August  15.]  CONSTITUTIONAL  CONVENTION.  507 

majority  of  women  voted  for  it,  a  minority  of  women  against.  The 
numerical  majority  might  then  be  for  prohibition.  Would  the 
majority  of  men  submit  to  the  decree  enacted  by  the  minority  of 
men,  assisted  by  non-combatants? 

I  do  not  attach  much  importance  to  the  argument  that  to  refuse 
women  the  right  to  vote  means  taxation  without  representation. 
All  property  must  be  made  to  bear  its  just  burden,  and  aliens,  infants 
and  lunatics  must  all  cpntribute  to  the  cost  of  maintaining  and 
enforcing  the  law.  No  distinction  is  made  in  any  case,  and,  if 
property  alone  were  the  basis  of  the  franchise,  the  millionaire 
should  have  a  thousand  votes,  if  the  man  taxed  for  one  thousand 
has  one.  The  individual  is  the  representative,  and  we  give  the 
right  to  vote  because  it  goes  with  the  duty  of  enforcing  govern- 
mental'decrees. 

The  people  of  the  State  of  New  York  will  be  carefully  watched, 
and,  should  the  franchise  be  granted  to  the  3,000,000  women  of  the 
State,  or  such  of  them  as  shall  be  qualified  voters,  it  would  have  a 
very  important  influence  beyond  the  limits  of  the  State;  and  in 
this  connection  it  may  be  profitable  to  note  what  other  States  are 
doing  for  and  against  woman  suffrage.  I  find  in  1891  municipal 
female  suffrage  bills  were  defeated  in  thirteen  States,  in  1892,  in 
eight  States,  and  in  1893,  in  fifteen  States. 

In  not  a  single  State  where  amendments  have  been  submitted 
has  there  been  a  majority  of  females.  In  this  State  the  women 
outnumber  the  men  by  44,000,  according  to  the  census  of  1890. 
The  States  voting  against  amendments  for  woman  suffrage  and 
the  dates  when  such  amendments  were  voted  down,  the  male, 
majorities,  according  to  the  same  census,  are  as  follows: 

Michigan,  1894,  majority  of  males 89,000 

Minnesota,  1878,  majority  of  males 63,000 

Nebraska,  1882,  majority  of  males 86,000 

Oregon,  1884,  majority  of  males 50.000 

Washington,  1889,  majority  of  males 86.000 

South  Dakota,  1890,  majority  of  males 32,000 

Wyoming  voted  for  majority  of  males 18.000 


Colorado,  in  1893,  voted  for  female  suffrage,  the  majority  of 
males  being  79,000.  And  in  Kansas,  where  the  amendment,  as  I 
understand,  is  to  be  voted  on  this  year,  the  males  exceed  the  females 
78,000. 

I  have  studiously  avoided  the  sentimental  side  of  the  question, 
and  it  is  not  necessary  for  me  to  enter  into  and  furnish  discussions 
of  the  merits  of  the  controversy.  Arguments  as  strong  as  genius 


REVISED   RECORD.  [Wednesday, 

and  ability  could  make,  and  forcible  as  language  could  express, 
have  been  presented  to  the  Convention  upon  this  subject;  but  this 
fact  still  remains  that  this  benefit  to  the  people  rests  in  theory  alone, 
and  no  argument  can  anticipate  results.  I  believe,  however,  that 
when  the  question  is  submitted  to  the  people,  that  men  will  be  left 
to  perform  the  duties  inseparably  connected  with  voting,  and  that 
women  will  be  undisturbed  by  political  duties  in  their  undisputed 
sway  over  our  homes —-"  useless  each  without  the  other." 
(Applause.) 

Mr.  Qampbell  —  Mr.  Chairman,  I  rise  to  this  question  simply, 
perhaps,  for  the  purpose  of  explaining  my  vote.  I  mean  to  vote  to 
disagree  with  the  report  of  the  committee,  and  to  say  a  few  words 
in  explanation  of  my  course. 

The  main  argument  advanced  against  extending  to  women  the 
right  to  vote  is  the  assertion  that  it  would  be  a  grave  and  serious 
danger  to  the  State.  That  argument,  if  based  on  facts,  is  entitled 
to  the  earnest  consideration  of  the  delegates  assembled  here.  If 
the  character  of  the  danger  were  specified,  or,  if  any  facts  were 
brought  to  your  notice  by  delegates,  then,  indeed,  it  would  demand 
attention. 

But  no  such  thing  has  yet  been  done,  and  we  are  left  to  imagine 
wherein  the  danger  lies,  and  we  ask  ourselves  the  question,  is  it 
possible  that  a  wider  interest  in  and  a  fuller  knowledge  of  the 
science  which  has  no  other  end  than  the  material  well-being  of  a 
people,  are  dangerous  to  that  people?  That  would  be  impossible, 
unless  the  State  is  not  a  government  of  the  people  and  by  them 
and  for  them.  But  it  is  such  a  government,  and,  while  we  live  and 
for  ages  to  come,4et  us  hope  that  this  State  will  be  always  the  State 
of  and  for  the  people. 

That  fear,  then,  is  groundless.  What,  then,  is  the  hidden  dan- 
ger? It  may  seem  to  be  and  is  a  paradox,  but  the  paid  advocates 
of  the  opponents  of  woman  suffrage  would  have  us  believe  that  the 
more  people  there  are  who  are  vitally  interested  in  the  making  and 
extension  of  just  laws,  then  the  more  corrupt  will  become  the 
means  to  that  end. 

They  assert  that  there  are  many,  dangerously  many,  corrupt 
voters  now,  when  men  alone  do  vote,  and  they  would  have  us  infer, 
as  a  necessary  conclusion,  that  when  women  do  vote,  the  corrupt 
vote  would  then  be  doubled.  But  they  give  no  proof,  show  no 
facts,  but,  like  a  lawyer  with  a  hopeless  case,  abuse  the  other  side. 

And  thus  one  of  the  most  distinguished  pleaders,  who  have  been 
allowed  to  speak  on  the  subject  here,  makes  the  statement,  without 
evidence  to  support  it,  and  points  out  to  you  exactly  where  he 


August  15.]  CONSTITUTIONAL  CONVENTION.  509 

thinks  the  danger  lies.  He  estimates  the  addition  to  the  corrupt 
vote,  he  pretends  to  give  the  almost  nameless  thing  a  local  habi- 
tation and  a  name.  I  refer  to  the  statement  made  by  Mr.  Matthew 
Hale  in  this  chamber.  He  has  published  his  statement  and  put  it 
broadcast  to  the  world.  You  will  find  it  in  the  Forum  of  June, 
1894.  With  your  permission,  I  will  read  it: 

"  Republican  institutions  are  threatened  by  the  prevalence  of 
bribery  and  corruption  more  than  by  any  other  cause.  Is  there 
any  reason  to  believe  that  any  less  proportion  of  women  than  of 
men  will  be  subject  to  such  influences?  In  answering  this  ques- 
tion, an  unsavory  fact  must  be  plainly  stated  and  squarely  looked 
in  the  face.  The  number  of  prostitutes  in  the  city  of  New  York 
alone  has  been  estimated  at  from  30,000  to  50,000.  Every  city  in 
the  State  adds  its  quota  to  this  disreputable  army.  These  women, 
who  live  by  selling  themselves  soul  and  body  to-day,  would,  of 
course,  sell  their  votes." 

If  the  one-tenth  of  what  Matthew  Hale  here  says  be  true,  then 
the  city  of  New  York  richly  deserves  the  fate  of  the  city  of  the 
plain.  It  is  time  for  the  averaging  and  purifying  fires  of  heaven  to 
descend  and  blot  her  from  the  earth.  But  let  us  put  this  monstrous 
slander  to  the  pitiless  analysis  of  figures,  not  figures  of  speech,  but 
cold,  hard  numerals  of  commerce,  the  figures  that  tell  no  lies,  and 
follow  me  as  closely  as  you  please.  I  find  by  the  eleventh 
census  of  the  United  States  (pages  755  and  756),  the 
only  one  which  gives  the  necessary  factors,  that  in  1890  the 
city  of  New  York  contained  389,000  females  between  fourteen 
and  forty  years  of  age,  the  only  ones  to  whom  the  falsehood  can 
apply;  call  it  400,000,  of  you  will,  then  add  10,000  for  the  benefit  of 
Matthew  Hale  and  his  story.  He  says  that  50,000  of  these  women 
and  girls,  he  estimated,  are  prostitutes.  In  other  words,  one  woman 
out  of  every  eight  wards  and  matrons  of  our  city  is  hopelessly 
lost,  dead  to  everything  that  man  and  woman  holds  most  dear, 
but  living  among  us,  festering  centres  of  moral  and  physical 
corruption. 

Can  this  monstrous,  hideous  thing  be  true?  If  any  portion  of 
what  he  says  be  true,  then  a  condition  exists  there  unparalleled  and 
unheard  of  in  the  modern  or  ancient  world.  It  is  impossible.  The 
figures  confute  the  slander.  Am  I  wrong  when  I  say  he  is 
answered?  He  is  dishonored.  At  the  time  this  unmitigable  slander 
was  uttered  it  was  allowed  to  pass  unheeded.  It  then  needed  no 
more  attention  that  the  yelping  of  a  mangy  cur  by  the  wayside, 
but  since  our  honored  colleagues  have  intimated  there  is  some 
hidden  danger  to  the  State  if  the  suffrage  is  extended  to  women, 


5IO  REVISED  RECORD.  [Wednesday, 

and  since  they  may  be  wrongly  charged  with  having  admitted  by 
their  silence  that  this  is  the  danger,  I  think,  in  justice  to  them,  it 
needed  an  answer  before  this  debate  is  closed.  I  know  they  would 
be  the  first  to  indignantly  repel  the  imputation  that  they  believed 
him,  and  their  eloquent  tributes  to  woman's  purity  and  virtue 
uttered  here  from  their  hearts,  testifies  to  the  world  that  there"  is 
no  place  in  their  manly  bosoms  where  the  vile  slander  can  take  root. 

But  the  charge  he  makes  is  specific,  and  directed  alone  at  the 
city  of  New  York. 

That  city  is  my  birthplace  and  my  home,  the  home  of  my  ances- 
tors and  of  my  children,  the  home  of  my  people.  I  love  her  as  a 
patriot  loves  his  native  land.  I  have  lived  there  for  over  fifty  years. 
She  has  honored  me  by  sending  me  here,  one  of  the  humblest  of 
her  delegates,  and  I  cannot  sit  here  and  hear  her  fair  name  maligned 
without  a  protest.  She  has  sent  here  a  body  of  delegates, 
myself  excepted,  the  peers  of  any  in  the  wide  world  in  intellect 
and  in  culture,  in  honesty  and  purity  of  life.  Could  they 
and  their  wives  and  children  live  and  move  and  have  their 
being  in  such  a  moral  charnel-house?  I  speak  to  my  fellow 
delegates  from  that  great  metropolis.  Do  I  state  more  than  the 
naked  facts  when  I  say  that  there  are  hundreds  and  thousands  of 
women  there  of  whose  loveliness  and  whose  purity  and  virtue  the 
most  eloquent  praises  to  women  that  have  been  uttered  on  this 
floor  would  be  nothing  but  the  literal  truth,  united  to  and  beloved 
by  men  whose  integrity  and  manliness,  and  whose  spotless  lives 
make  them  worthy  to  be  the  husbands,  sons  and  brothers  of  such 
women?  On  this  behalf,  my  fellow  delegates,  I  rightfully  demand 
for  you  and  for  myself,  that  whoever  reads  or  hears  the  foul  slan- 
der against  their  fair  fame  will  deny  it  with  all  the  power  of  his 
soul,  and  defend  their  virtue  as  he  would  his  life.  (Applause.) 

Mr.  McKinstry  —  Mr.  President,  in  my  remarks  last  Thursday 
evening  I  placed  considerable  stress  upon  the  memorial  of  the  New 
York  State  Grange,  presented  to  this  body  in  behalf  of  equal 
suffrage.  Last  evening  a  gentleman  challenged  that  memorial  as 
representing  a  very  few  persons  —  that  it  was  not  the  voice  of  the 
members  generally.  I  simply  wish  to  say  in  this  Convention  that 
the  gentleman  is  mistaken.  Possibly  the  memorial  presented  may 
have  been  agreed  upon  by  a  few  persons.  It  was  the  composition 
of  one  person,  a  talented  lady  of  Chautauqua  county,  but  it  was 
formally  adopted  by  the  State  Grange  in  its  twenty-first  annual 
session,  and  it  represents  the  sentiment  of  that  body  as  repeatedly 
expressed  in  years  past. 

The  State  Grange  is  composed  of  the  masters  and  past  masters  of 


August  15.]  CONSTITUTIONAL  CONVENTION.  511 

the  subordinate  granges  throughout  the  State,  over  600  in  number. 
Delegates  are  also  sent,  so  that  the  annual  State  meeting  comprises 
about  a  thousand  members,  a  large  proportion  of  those  members 
being  women.  You  can  see  how  absurd  it  would  be  for  a  male 
member  to  rise  in  his  place  and  argue  that  these  women  were  able 
enough  and  good  enough  to  hold  any  office,  no  matter  how  exalted, 
in  their  beloved  order,  but  not  able  and  good  enough  to  vote  at  a 
general  election.  I  have  attended  many  meetings  of  subordinate 
and  county  granges,  and  I  never  have  heard  a  member  advance  such 
a  proposition,  or  say  even  in  private  confidential  conversation,  that 
he  regretted  that  the  order  was  founded  upon  the  basis  of  absolute 
equality  between  the  men  and  women  members. 

The  grange  has  been  a  great  educator  in  the  line  of  recognition  of 
the  capacity  of  women  for  organized  proceedings.  Its  effects  upon 
the  women  members  have  done  much  to  convince  me  that  all  women 
would  be  improved  by  having  a  voice  in  public  affairs.  I  have 
been  astonished  at  the  development  of  women  in  their  capacity  to 
fill  various  grange  offices,  including  that  of  master,  and  at  their 
skill  in  debate  and  their  efficiency  upon  committees.  I  once  heard 
a  plain  pioneer  woman  read  to  a  country  grange  an  original  address, 
which  would  have  been  creditable  to  any  member  of  this  body.  I 
had  the  honor  of  being  a  charter  member  and  lecturer  at  the  first 
grange  ever  established,  and  we  celebrated  its  quarter  centennial  last 
year.  During  the  past  twenty-five  years  I  have  been  very  familiar 
with  the  membership  and  sentiments  of  the  order,  and  I  assert  most 
positively  that  the  memorial  we  have  received  does  represent  the 
overwhelming  sentiment  of  the  50,000  members  in  this  State,  and 
they  should  be  counted  here  as  praying  for  the  submission  to  the 
people  of  a  constitutional  amendment  making  men  and  women  equal 
before  the  law  —  not  only  equal  as  subjects  of  the  law,  but  equal  as 
makers  of  the  law.  In  saying  this,  Mr.  President,  I  would  not  cast 
any  reflection  upon  Mr.  Cookinham's  candor  or  desire  to  be  fair. 
There  is  no  more  conscientious  and  justly-disposed  man  in  all  this 
Convention  than  Henry  J.  Cookinham,  nor  one  upon  whose  state- 
ment of  a  fact  I  would  more  absolutely  rely  when  he  states  a  fact  of 
his  own  knowledge  and  not  upon  information  and  belief.  In  this 
matter  I  simply  claim  that  I  am  in  a  better  position  to  know  the 
facts  than  he  is. 

Mr.  President,  we  were  challenged  last  evening  to  present  an  argu- 
ment showing  wherein  woman  suffrage  would  benefit  the  State.  I 
have  testimony  bearing  exactly  on  that  point.  Two  years  ago  I  was 
making  an  excursion  through  California,  and  one  morning  found 
myself  seated  in  the  same  section  of  a  sleeping  coach  with  a  gentle- 


512  REVISED   RECORD.  [Wednesday, 

man  and  his  wife  from  Cheyenne,  Wyoming.  A  more  charming 
lady  I  never  met,  and  I  had  conversed  with  her  some  time  before 
it  suddenly  occurred  to  me  that  this  lady  was  a  voter;  that  I  had 
actually  been  talking  to  one  of  those  horrible  monstrosities  into 
which  woman  suffrage  would  convert  all  our  women,  if  the  theories 
of  some  of-our  wise  men  of  the  east  are  correct.  The  sudden  realiza- 
tion of  my  proximity  to  such  a  frightful  product  almost  took  my 
breath  away,  but  I  managed  to  say:  "Madam,  residing  in 
Wyoming,  you  must  be  a  voter."  "  Oh,  yes,"  she  replied,  "  I  have 
voted  nearly  twenty  years,  and  I  would  not  live  where  I  could  not 
vote.  I  expect  to  vote  for  President  this  year,"  and  she  seemed  to 
grow  an  inch  taller  as  she  said  it.  There  she  was,  a  refined  lady,  and 
a  bright,  delightful  companion,  and  yet  she  not  only  voted  regularly, 
but  prized  the  opportunity  as  her  dearest  right.  She  was  of  the 
class  who,  according  to  the  statements  of  gentlemen  upon  this 
floor,  do  not  want  to  vote  and  would  not  vote  if  they  could.  I 
immediately  turned  to  the  husband  of  this  lady  and,  while  my  wife 
engaged  her  in  conversation,  I  asked  him  confidentially,  what  he 
thought  of  woman  suffrage  in  Wyoming.  I  want  to  say  right  here 
that  there  was  nothing  of  the  sentimental  dude  about  him.  He  was 
a  sensible,  intelligent,  practical  man,  and,  as  I  afterwards  learned, 
has  considerable  wealth  and  extensive  business  interests,  and  takes 
an  active  part  in  politics.  He  weighed  250  pounds,  was  six  feet 
high  and  well  proportioned.  Talk  about  chivalry  disappearing 
when  women  vote!  I  should  like  to  have  seen  a  man  treat  his  wife 
disrespectfully,  or  insult  any  woman  in  his  presence.  The  offend- 
ing loafer  would  have  been  literally  mangled.  But  to  the  Wyoming 
gentleman's  testimony.  It  was  simply  to  this  effect:  That  the  fact 
of  women  voting  in  that  State  had  long  ago  ceased  to  be  a  matter 
of  discussion.  It  was  accepted  as  a  matter  of  course;  that  their 
women  kept  well  posted  on  public  affairs  and  were  inclined  to  be 
strict  partisans.  They  nearly  always  voted  the  straight  ticket  of 
whichever  political  party  they  .favored,  and  were  not  numerous  at 
caucuses  and  conventions,  "  but,"  said  he,  "  if  either  party  puts  up 
a  notoriously  bad  man,  the  whole  body  of  women  will  spot  him 
every  time."  "And,"  he  added,  "  it  makes  both  parties  mighty  par- 
ticular whom  they  nominate  to  important  offices." 

Now,  gentlemen,  is  not  that  a  desirable  influence  to  have  in  every 
State?  To  have  a  large  body  of  voters  somewhat  removed  from 
politics,  and  yet  ready  to  vote  only  for  good  men.  The  great  curse 
of  the  State  is  the  extent  to  which  bad  men  get  into  office.  Wre  are 
deluged  here  with  propositions  and  contrivances  to  keep  rascals  in 
office  from  defrauding  the  people.  Such  measures  are  always  a 


August  15.]  CONSTITUTIONAL  CONVENTION.  513 

failure.  The  only  effective  safeguard  is  to  keep  rascals  out  of 
power,  and  then  you  will  have  good  government  under  any  Code. 
To  the  gentleman  who,  last  evening,  challenged  us  to  mention  a 
benefit  that  might  accrue  to  the  State  by  doing  justice  to  the  women 
of  the  State,  I  commend  this  testimony  from  Wyoming. 

Mr.  Lincoln  —  Air.  President,  the  question  before  this  Conven- 
tion is  whether  the  proposed  constitutional  amendment  introduced 
by  Mr.  Tucker,  with  an  addition  made  by  the  Committee  on  Suf- 
frage, shall  be  put  into  the  Committee  of  the  Whole.  That,  I  under- 
stand, is  the  effect  of  disagreeing  to  the  report  of  the  committee. 
While  the  question  is  directly  upon  agreeing  to  this  report,  those 
who  vote  against  agreeing  to  the  report  thereby  vote  to  put  this 
amendment  into  Committee  of  the  Whole,  where  it  may  be  perfected, 
if  not  already  perfect,  by  those  who  favor  the  general  proposition, 
and  where  amendments  may  be  offered  to  it  of  such  a  character  as 
to  fit  it  for  final  submission  to  the  people,  if  a  majority  of  the  Con- 
vention shall  finally  be  in  favor  of  that  course. 

Now,  I  take  it  for  granted  that  every  delegate  here,  who  is  in  favor 
of  submitting  any  proposition  to  the  people,  will  vote  to  disagree  to 
the  report  of  the  committee,  whether  it  be  the  proposition  of  Mr. 
Tucker,  whether  it  be  one  submitting  the  question  to  a  vote  of  the 
women  themselves,  whether  it  be  an  amendment  to  submit  to  the 
people  next  year,  or  in  whatever  form  delegates  may  think  best  to 
submit  a  question  of  this  sort  to  the  people,  they  will  vote  to  disagree 
with  this  report,  so  that  they  may  put  this  entire  question  where  it 
may  be  modified  and  made  satisfactory  to  a  majority,  if  a  majority 
are  in  favor  of  a  submission  at  all. 

Now,  I  beg  to  make  this  suggestion,  that  in  the  interest  of 
economy  of  time,  for  considerable  time  has  already  been  consumed 
upon  this  question,  it  will  pay  this  Convention  to  vote  to  disagree 
with  the  report  of  this  committee.  A  large  number  of  delegates  in 
this  Convention  are  in  favor  of  submitting  some  proposition  in  some 
form.  Whether  we  agree  with  this  one  or  not  is  not  material,  but  I 
think  I  speak  for  those  who  favor  a  submission  when  I  say  that  if 
the  report  of  the  committee  is  disagreed  to  and  this  whole  matter  is 
thereby  put  into  Committee  of  the  Whole  for  general  consideration 
and  amendment,  the  whole  subject  will  be  there  discussed  and  dis- 
posed of.  But,  I  think,  I  also  may  safely  say  that  if  this  report  is 
agreed  to,  the  general  consideration  of  this  question  will  be  brought 
before  the  Convention  again,  and  the  opponents  of  woman  suffrage, 
if  voting  to  agree  to  this  report,  simply  for  the  purpose  of  saving 
time,  will  waste  their  votes  and  will  waste  time,  because  when  the 
33 


5 14  REVISED  RECORD.  [Wednesday, 

general  amendments  offered  by  the  Committee  on  Suffrage  come 
before  the  Convention  in  Committee  of  the  Whole  for  consideration ; 
for  instance,  the  first  section  of  article  2,  or  the  section  relating  to 
registration,  or  the  section  relating  to  the  educational  qualifications 
of  voters  which  the  committee  suggest,  to  some  one  or  more  of  these 
proposed  constitutional  amendments  amendments  will  be  offered  on 
the  line  of  the  thought  embraced  in  the  amendment  now  before  this 
Convention.  That  is  why  I  say  that  everyone,  who  is  in  favor  of 
disposing  of  this  question  in  the  shortest  way,  will  vote  to  disagree 
with  the  report  of  this  committee  so  that  we  may  have  it  where  we 
may  agree  upon  a  form  of  amendment  to  submit  to  the  people. 

Now,  I  am  free  to  say  that  I  am  not  quite  satisfied  with  the  form  of 
this  amendment,  but  I  shall  vote  to  disagree  with  the  report  of  the 
committee  for  the  purpose  of  putting  it  where  it  may  be  perfected, 
and  if  this  it  not  the  best  form,  then  some  other  form  may  be  made. 
I  believe,  Mr.  President,  that  a  majority  of  this  Convention  are  in 
favor  of  submitting  some  form  of  amendment  to  the  people  upon 
this  question;  whether  it  shall  be  the  proposed  Tucker  amendment, 
which  will  be  a  rider  attached  to  section  i  of  article  2,  or  whether  it 
shall  be  an  independent  proposition,  is  a  question  which  we  can 
dispose  of  if  we  get  into  Committee  of  the  Whole;  but  of  course  we 
can  make  no  amendments  here.  My  own  thought  is  that  it  would 
be  better  to  submit  this  question  as  an  independent  section;  either 
an  independent  section  providing  for  the  submission  of  the  ques- 
tion next  year  or  some  other  year,  or  what  I  think  may  be  done, 
submit  a  proposition  directly  for  the  vote  of  the  people  next  year  or 
some  other  year,  so  that  if  the  delegates  favor  eliminating  this  ques- 
tion of  woman  suffrage  from  the  proposed  Constitution  which  we 
may  submit  to  the  people  this  year,  that  may  be  done.  I  think  this 
Convention  has  complete  power  to  take  that  course,  because  this 
Convention  is  a  sovereign  body,  and  if  we  submit  an  amendment  to 
the  people  to  be  voted  upon  next  year,  without  the  people  first 
voting  for  it  this  year  for  the  purpose  of  submitting  it  next  year, 
then  if  that  question  is  voted  upon  and  ratified  by  the  people  it 
becomes  a  part  of  our  fundamental  law. 

It  has  been  urged  here,  I  think,  by  some  who  are  opposed  to  any 
submission  at  all,  that  it  is  inconsistent  for  us  now  to  vote  to  submit 
a  proposition  for  amendment  independent  of  section  i,  which  is  the 
general  article  relating  to  suffrage.  We  have  very  high  authority, 
Mr.  President,  for  submitting  an  independent  proposition.  The 
members  of  this  Convention  will  recall  the  fact  that  in 
1846  the  Constitutional  Convention  perfected  the  section  relat- 
ing to  suffrage,  but  it  did  not  give  equal  suffrage  to  colored 


August  15.]  CONSTITUTIONAL  CONVENTION.  515 

persons.  The  Convention  provided  for  a  separate  submis- 
sion of  a  separate  section  to  be  voted  upon  separately  with  the  pro- 
vision that  if  a  majority  of  the  votes  upon  that  separate  submission 
were  in  favor  of  equal  negro  suffrage,  then  that  that  section  should 
stand  as  far  as  negro  suffrage  was  concerned,  instead  of  the  one  that 
was  finally  perfected  and  placed  in  the  body  of  the  Constitution 
itself;  that  submission  was  made  accordingly,  and  the  separate  vote 
was  not  in  favor  of  equal  negro  suffrage.  The  same  proposition 
was  submitted  in  substantially  the  same  form  by  the  Constitutional 
Convention  of  1867. 

So,  that,  Mr.  President,  we  have  two  Conventions  offering  us  this 
precedent  that  we  may  perfect  our  article  on  suffrage  and  make  it  a 
part  of  the  body  of  our  fundamental  law  as  finally  submitted  by  us 
to  the  people,  and  then  submit  an  independent  question  to  the  people 
with  the  provision  that  in  case- a  majority  of  the  votes  are  in  favor 
of  the  question  submitted  by  the  independent  proposition,  it  shall 
have  the  effect  to  nullify  and  set  at  naught  the  other  proposition 
which  stands  in  the  body  of  the  Constitution.  It  seems  to  me  there 
is  no  constitutional  or  legal  objection  to  the  submission  of  this  ques- 
tion in  the  form  suggested  either  by  Mr.  Tucker's  amendment  or 
some  other  of  a  similar  character,  and  so  I  say  that  all  who  are  will- 
ing even  that  this  matter  should  be  considered  in  Committee  of  the 
Whole  for  the  purpose  of  perfecting  a  possible  amendment,  should 
vote  to  disagree  with  the  report  of  the  committee.  I  have  voted  at 
least  twice  in  this  Convention  to  disagree  with  the  report  of  a  com- 
mittee where  I  was  not  in  favor  of  the  proposition  reported  adversely 
by  the  committee,  but  I  was  in  favor  of  the  principle  involved  in  it, 
and  for  that  purpose  I  was  willing  that  the  advocates  of  the  measure 
should  have  their  day,  should  have  an  opportunity  to  perfect  their 
scheme  if  they  might,  and  get  it  in  shape  where  it  would  be  agree- 
able to  the  majority.  So  I  appeal  to  the  generosity  of  the  Conven- 
tion in  favor  of  the  advocates  of  woman  suffrage  who  are  in  favor 
of  submitting  some  proposition  to  vote  to  put  this  question  where 
these  people,  these  advocates  of  submission,  may  have  the  oppor- 
tunity to  put  their  amendment  in  proper  form.  Enough  upon  that. 

I  have  listened,  Mr.  President,  very  attentively  to  every  speech 
that  has  been  delivered  so  far  in  this  woman  suffrage  debate.  I 
have  listened  with  great  expectancy,  but  in  vain,  for  some  reason 
why  suffrage  should  not  be  extended  to  women.  We  have  not  yet 
heard  from  the  chairman  of  the  Suffrage  Committee.  What  thun- 
derbolts he  may  have  in  reserve  I  do  not  know,  but  we  shall  probably 
hear  to-night.  I  suppose  that  according  to  ordinary  parliamentary 
practice  it  would  have  been  his  duty  to  open  the  debate,  and  give  the 


5i6  REVISED   RECORD.  [Wednesday, 

other  side  the  benefit  of  an  opportunity  to  reply  to  his  arguments, 
if  he  had  any.  But  he  was  chosen  to  take  the  other  course,  quite 
unusual  in  deliberations  of  this  kind,  and  chooses  to  close  the  debate, 
so  that  whatever  he  may  have  to  say,  in  a  carefully  prepared  and 
written  speech,  as  I  understand,  will  be  without  reply  by  the  advo- 
cates of  submission. 

A  good  deal  has  already  been  said  upon  this  general  question,  and 
my  time  is  too  limited  to  permit  me,  if  I  desired  to  go  over  this 
ground  again,  but  there  is  a  suggestion  that  I  desire  to  make.  All 
the  suggestions,  all  the  arguments,  if  they  can  be  called  arguments, 
in  opposition  to  the  submission  of  this  question,  and  in  opposition 
to  the  extension  of  the  elective  franchise  to  women,  have  been  argu- 
ments .based  upon  expediency  only.  Now,  an  argument  of  expedi- 
ency is  the  argument  of  tyranny  always;  because  it  is  based  upon 
the  suggestion  that  persons  who  •  have  the  power  may  deem  it 
expedient,  or  inexpedient,  according  to  their  sweet  notions,  whether 
they  shall  extend  any  power  to  others  or  not. 

The  question  of  the  right  of  this  matter  has  not  been  touched  upon 
here,  as  I  have  observed,  by  any  of  the  opponents  of  woman  suffrage. 
Whether  it  may  be  alluded  to  by  the  distinguished  chairman  of  this 
committee,  we  are  yet  to  hear. 

Last  night,  the  gentleman  from  Oneida  (Mr.  Cookinham)  took 
pains  to  say  that  it  was  not  for  the  interest  of  the  State  to  have  the 
suffrage  extended  to  women.  He  was  interrogated  as  to  the  defini- 
tion of  the  word  "  State,"  and  he  replied  by  saying  that  the  State 
included  every  man  and  every  woman,  and  every  boy  and  every 
girl.  Now,  it  struck  me  with  great  force  at  that  time,  Mr.  President, 
that  the  definition  destroyed  his  argument;  because  when  he  says 
that  it  is  not  for  the  benefit  of  the  State,  and  that  the  State  is 
composed  of  these  various  component  parts  which  he  has  mentioned 
here,  his  argument,  if  there  is  any,  leads  to  the  conclusion  that  a  part 
of  the  State  shall  determine  what  is  best  for  the  remainder  of  the 
State,  who  are  the  constituent  elements  of  it.  (Applause.)  A  more 
consistent  definition  of  the  State  is  that  given  by  Louis  XIV,  who 
said,  "  I  am  the  State."  Is  that  what  the  gentleman  from  Oneida 
means  when  he  said,  we,  that  is,  the  opponents  of  woman  suffrage, 
the  majority  of  the  Committee  on  Suffrage,  are  the  State?  The 
French  king  spoke  more  truly  in  the  sense  in  which  he  understood 
it,  and  in  which  it  was  understood  at  that  time,  than  it  is  now 
declared  by  this  member  of  the  Suffrage  Committee,  because  when 
he  said,  "  I  am  the  State,"  he  spoke  that  which  was  literally  true  with 
him,  because,  in  his  day  and  in  his  government,  there  was  in  him 


August  15.]  CONSTITUTIONAL  CONVENTION.  517 

absolute  and  complete  authority  over  every  subject  in  his  whole 
dominion. 

I  heard,  with  surprise,  last  night  the  gentleman  from  Oneida  say 
further  upon  this  question :  "  We,"  as  I  understood  him,  "  the 
majority  of  the  Committee  on  Suffrage,  represent  the  women  of  the 
State  of  New  York."  I  would  like  to  ask  when  they  received  their 
power  of  attorney?  (Applause.) 

Now,  if  civil  government  were  to  be  reorganized,  upon  what  basis 
would  that  reorganization  take  place?  Would  it  be  reorganized 
upon  a  basis  that  would  give  women  a  proper  status  in  political 
society?  While  Robinson  Crusoe  lived  alone  upon  his  island,  he 
could  truthfully  say  that  he  was  monarch  of  all  he  surveyed,  and  his 
right  there  was  none  to  dispute.  But  when  the  second  man  came 
upon  that  island  there  was  presented  the  problem  of  civil  govern- 
ment; and  one  of  four  things  must  have  occurred;  one  or  the  other 
of  those  men  must  be  killed,  or  driven  from  the  island, 
or  put  humself  in  subjection  to  the  other  one,  or  else 
there  must  have  been  a  compromise.  There  was  a  com- 
promise; and,  Mr.  President,  the  whole  complex  machinery  of 
modern  civilization  is  simply  a  net-work  of  compromises.  On 
another  day  another  person  —  a  woman  —  comes  to  the  island,  and 
now  another  question  is  presented.  Will  these  two  men  divide  their 
power  and  authority  and  compromise  further  by  giving  the  third 
person  one-third  of  the  powers  and  privileges  which  they  have 
created  and  agreed  upon  for  themselves?  That  would  seem  to  be 
the  logical  result  of  the  situation.  Here  is  a  creature  coming  upon 
the  island  who  has  the  right  to  life,  liberty  and  the  pursuit  of 
happiness.  She  has  the  right  of  self-defense.  No,  they  do  not  do 
that;  they  put  their  heads  together  and  they  say:  "  This  woman, 
poor  thing,  is  a  weaker  vessel.  We  can  overcome  and  subdue  her. 
We  won't  divide  power  with  her.  We  will  compel  her  to  be  a 
servant  for  us,  and  she  shall  only  share  such  things  as  we  may  see 
fit  in  our  generosity  and  our  charity  to  give  her."  So,  upon  that 
arrangement  woman  receives  her  status  in  civil  society,  not  as 
matter  of  right,  but  by  might.  And  ever  since  that  day,  ever  since 
society  was  organized,  woman  has  occupied  that  position,  with  here 
and  there  a  solitary  exception. 

And  now  comes  the  question,  shall  authority  be  extended  further? 
Shall  woman  be  raised  to  the  same  place  as  men  in  the  political 
organization  which  we  call  civil  government?  Is  there  any  right 
which  she  is  not  entitled  to,  which  men  may  enjoy?  If  she  owns 
property  has  not  she  the  same  right  to  protect  it  that  man  has?  If 
she  wants  to  go  out  into  the  world  and  do  business,  has  she  not  the 


518  REVISED   RECORD.  [Wednesday, 

same  right  to  the  protection  of  the  law  that  man  has?  You  say 
yes,  but  she  lacks  one  thing.  Let  me  state  the  situation  as  it  now 
exists  in  modern  society.  Here  is  a  family  where  a  boy  and  a  girl 
are  growing  up  together.  The  girl  takes  advantages  of  the  educa- 
tional facilities  which  we  have  accorded  to  her.  She  grows  up  into 
womanhood,  she  outstrips  her  brother  in  the  race  for  education; 
she  goes  out  into  the  world  and  tries  to  engage  in  one  of  the  pro- 
fessions or  one  of  the  classes  of  business  now  open  to  her,  but  she 
goes  handicapped  by  the  lack  of  the  protecting  power  of  the  ballot. 
That  she  has  a  right  to  the  ballot  just  as  much  as  her  brother  has, 
cannot  be  denied.  Mr.  President,  it  is  not  worth  while  to  pursue  this 
argument,  because  the  exclusion  of  women  from  the  right  of 
suffrage  cannot  be  sustained  for  a  moment  on  principle.  It  is 
purely  a  question  of  expediency,  as  has  already  been  suggested  by 
the  opponents  of  woman  suffrage,  and  when  they  talk  about  expedi- 
ency, they  rest  upon  the  power  which  they  now  possess.  They  have 
the  power,  I  admit.  Suppose  I  should  ask  one  of  these  gentlemen 
who  represent  the  majority  in  the  Committee  on  Suffrage,  where 
did  you  get  the  right  to  vote?  Why,  they  say  the  Constitution 
give  us  the  right!  Who  made  your  Constitution?  Our  fathers 
made  it.  Who  authorized  your  fathers  to  make  the  Constitution 
for  men  only?  Who  gave  them  the  power  to  make  a  Constitution 
in  that  form?  They  took  it,  and  they  have  exercised  it  ever  since. 

And  so  I  say,  as  I  said  before,  that  the  argument  of  expediency 
is  the  argument  of  tyranny,  and  I  ask  this  question:  Why  cannot 
the  opponents  of  women  suffrage  be  candid  and  admit  that  the 
secret  of  their  opposition  to  the  extension  of  the  elective  franchise 
to  women  lies  in  the  selfishness  of  power?  That  is  where  it  is. 
You  say  that  women  are  not  fit  to  vote,  that  they  are  not  educated 
up  to  it,  that  it  would  be  wrong  for  them  to  vote,  that  it  would 
divide  families,  and  make  trouble  in  society.  Let  us  see.  Men 
and  women  own  their  property  separately,  do  they  not?  Is  there 
any  quarrel  about  that?  Does  that  divide  families  necessarily? 
The  mother  has  as  much  right  to  speak  for  the  guardianship  of  her 
children  as  the  father  has.  Has  that  disrupted  families?  They 
may  buy  and  sell  land  together.  They  may  buy  of  each  other 
and  sell  to  each  other,  they  may  give  notes  to  each 
other,  they  may  form  partnerships  for  business  purposes 
with  each  other.  They  do  all  these  things,  and  the  family 
is  not  disrupted.  We  have  gone  so  far  as  to  permit  them  to  vote 
for  school  officers,  a  matter  in  which  they  are  very  much  interested. 
The  family  has  not  been  disrupted  on  that  account,  has  it?  Not  at 
all.  And  if  they  can  vote  for  school  trustees,  is  the  family  in  danger 


August  15.]  CONSTITUTIONAL  CONVENTION.  519 

if  they  vote  for  a  supervisor?     And  if  they  can  vote  for  a  supervisor, 
is  the  family  in  danger  if  they  vote  for  Governor?     Not  at  all. 

But,  Mr.  President,  my  time  is  nearly  exhausted.  I  say  this: 
Woman  suffrage  is  the  inevitable  result  of  the  logic  of  the  situation 
of  modern  society.  (Applause.)  It  must  come.  We  cannot  stop 
it.  Every  man  in  this  Convention  may  vote  against  submitting 
any  question  of  this  sort  to  the  people;  we  can  only  hinder,  we 
cannot  prevent  it.  (Applause.)  If  universal  suffrage  is  a  mistake, 
that  mistake  was  made  ages  ago;  because  if  women  are  not  to  have 
all  the  rights  which  the  logic  of  the  situation  gives  them,  then  we 
ought  to  have  kept  women  in  subjection,  in  the  same  subjection 
in  which  the  Roman  women  were  kept  in  the  early  days  of  Rome, 
when  she  surrendered  her  person  and  her  property  and  every  inter- 
est she  had  to  the  possession  and  dominion  of  her  husband.  Women 
ought  to  have  been  kept  in  the  situation  in  which  they  were  placed 
by  the  old  English  common  law,  which  we  have  been  accustomed 
to  boast  of  so  much.  But  when  we  opened  the  door,  we  opened  it 
to  all  this  growth,  all  this  progress,  and  all  this  improvement,  and 
we  have  brought  society  to  this  one  point  now  where  nothing  is 
lacking  for  the  complete  enfranchisement  of  woman,  except  the 
ballot.  The  despot  who  first  yielded  an  inch  of  power  gave  up  the 
field.  That  power  could  never  be  recalled.  Reforms  do  not  go 
backwards.  Everything  goes  forward.  We,  to-night,  stand  here 
upon  the  threshold  of  a  great  opportunity,  to  push  this  movement 
still  further  forward,  and  not  try  to  avert  the  natural  and  irresistible 
result  of  all  this  improvement  which  we  have  fostered  up  to  this 
present  moment.  We  cannot  stem  this  tide,  it  is  irresistible. 
Canute  may  forbid  the  rising  of  the  tide,  but  the  tide  rises.  Xerxes 
may  whip  the  Hellespont  to  subdue  its  raging,  but  its  raging  goes 
on.  (Applause.)  What  are  the  feeble  efforts  of  man  against  the 
resistless  energies  of  the  universe?  We  are  simply  standing  here 
now,  possibly  in  our  own  light,  certainly  in  the  light  of  the  best 
interests  of  the  State  of  New  York,  when  we  stand  in  the  way  of 
this  forward  movement.  And  I  say  that  we  ought  to  get  out  of  the 
way  and  permit  this  movement  to  go  on,  and  not  to  resist  further 
this  claim  for  enlargement,  for  improvement,  which  the  women 
demand,  and  which  every  man,  I  believe,  in  this  chamber  to-night 
will  admit  that  the  near  future  will  bring.  Carlyle  says  that  "  the 
moment  is  the  mother  of  ages."  It  has  been  so,  often  in  the  history 
of  the  world,  when  the  decisions  of  a  moment  have  changed  the 
destinies  of  nations,  and  of  the  world.  This  moment  may  be  the 
mother  of  ages.  Many  times  in  the  past  has  that  saying  of  Carlyle 
proved  true.  It  was  at  Runnymede,  when  King  John  gave  to  the 


520  REVISED  RECORD.  [Wednesday, 

barons  of  England,  and  to  us,  immortal  Magna  Charta.  It  was  so 
at  Concord  Bridge,  when  that  shot  was  fired  that  was  heard  around 
the  world.  It  was  so  in  1861,  when  the  boom  of  the  first  gun 
fired  on  Sumter  sounded  the  death  knell  of  human  slavery.  It  may 
be  so  to-night  if  we  rise  to  our  great  opportunity.  Pass  some 
amendment  which  shall  give  to  the  people  of  this  great  State  the 
right  to  express  their  own  judgment,  in  their  own  way,  upon  this 
transcendent  question,  and  this  moment  may  be  the  mother  of  ages; 
ages  of  a  more  exalted  womanhood;  ages  of  a  nobler  womanhood; 
ages  of  a  broader  civilization,  and  ages  of  a  loftier  patriotism. 
(Applause.) 

Mr.  Goeller  —  On  this  question  of  female  suffrage,  as  it  is  before 
us  in  various  propositions,  I  desire  to  address  myself  to  one  part  of 
it,  the  proposition  to  send  it  to  the  people. 

The  delegates  have  been  sent  here  by  the  people  to  formulate 
principles.  You  are  the  doctor  to  prescribe  for  the  patient,  but  by 
sending  this  question  in  this  manner  to  the  people  you  bring  forth 
the  anomalous  position  of  the  patient  being  asked  by  the  doctor  to 
prescribe.  Voters  have  made  you  their  agents  to  do  this  work, 
and,  for  the  confidence  they  have  shown  in  your  intelligence,  you 
make  return  by  doing  nothing  on  this  momentous  subject. 

Now,  gentlemen,  right  here  you  must  act.  Say  not,  "  We  know 
not  how.''  You  were  sent  here  as  architects  to  design  this  structure 
of  suffrage,  or  design  something  material,  something  of  substance. 
You  are  here  to  decide  and  the  people  to  pass  upon  your  decision. 
Shirking  is  not  doing  a  duty.  My  vote  and  influence  are  not  for 
a  policy,  to  pursue  which  means  that  this  Convention  is  not  to 
decide  but  to  send  the  question  to  the  people.  I  am  against  it,  and 
will  vote  that  we  now  decide  whether  women  are  or  are  not  to  have 
the  ballot.  "  'Tis  ours  the  chance  of  fighting  fields  to  try." 

Mr.  Lauterbach  —  Mr.  President,  I  regret  that  I  will  not  be  able 
to  know  what  the  arguments  of  the  other  side  are.  They  are  yet  to 
come.  I  do  not  consider  that  the  usual  confectionery  that  is 
afforded  to  women  on  every  occasion  in  which  their  rights  are 
discarded,  such  as  was  given  to  the  women  in  lieu  of  their  rights 
last  night  in  a  very  ornate  and  beautiful  speech,  is  argument.  That 
is  the  usual  method  in  which  their  requests  are  treated.  There  was 
no  argument  of  any  other  character  that  I  know  of.  There  has 
been  none  presented  which  cannot  be  answered,  that  I  am  now 
conscious  of. 

I  have  a  few  minutes,  or  perhaps  a  minute,  in  which  to  address 
the  members  of  this  Convention.  I  ask  both  parties  that  are  repre- 
sented in  this  Convention  to  carrv  out  the  boast  that  has  character- 


August  15.]  CONSTITUTIONAL  CONVENTION.  521 

ized  them  from  the  beginning  of  this  session,  to  be  absolutely 
non-partisan  and  fair.  I  ask  that  upon  this  question,  in  which  the 
rights  of  women,  the  wives  and  sisters  and  daughters  of  Democratic 
members  and  of  Republican  members  alike,  are  involved,  the  boast 
that  has  been  made  that  there  is  no  partisanship,  shall  really  prevail. 
This  is  a  question  that  should  be  without  partisanship,  a  question 
that  should  be  considered  absolutely  upon  its  merits,  if  any  ques- 
tion here  should,  and  yet  I  feel  that  the  only  reason  that  will 
prevent,  if  any  reason  shall  prevent,  the  women  from  receiving  the 
poor  boon  of  presenting  their  claim  to  the  people  of  the  State  in 
November,  1895,  is  that  of  political  expediency.  (Applause.) 

The  President  —  The  floor  now  belongs  to  those  who  are  in  favor 
of  sustaining  the  report  of  the  committee. 

Mr.  Root  —  Mr.  President,  the  courtesy  of  the  chairman  of  the 
Suffrage  Committee  has  accorded  to  me  fifteen  minutes  of  his 
time.  I  am  opposed  to  the  granting  of  suffrage  to  women, 
because  I  believe  that  it  would  be  a  loss  to  women,  to  all  women 
and  to  every  woman;  and  because  I  believe  it  would  be  an  injury 
to  the  State,  and  to  every  man  and  every  woman  in  the  State.  It 
would  be  useless  to  argue  this  if  the  right  of  suffrage  were  a  natural 
right.  If  it  were  a  natural  right,  then  women  should  have  it  though 
the  heavens  fall.  But  if  there  be  any  one  thing  settled  in  the  long 
discussion  of  this  subject,  it  is  that  suffrage  is  not  a  natural  right, 
but  is  simply  a  means  of  government;  and  the  sole  question  to  be 
discussed  is  whether  government  by  the  suffrage  of  men  and  women 
will  be  better  government  than  by  the  suffrage  of  men  alone.  The 
question  is,  therefore,  a  question. of  expediency,  and  the  question  of 
expediency  upon  this  subject  is  not  a  question  of  tyranny,  as  the 
gentleman  from  Cattaraugus  has  said,  but  a  question  of  liberty, 
a  question  of  the  preservation  of  free  constitutional  government,  of 
law,  order,  peace  and  prosperity.  (Applause.)  Into  my  judgment, 
sir,  there  enters  no  element  of  the  inferiority  of  woman.  There 
could  not,  sir,  for  I  rejoice  in  the  tradition  and  in  the  memory  and 
the  possession  of  a  home  where  woman  reigns  with  acknowledged 
superiority  in  all  the  nobler,  and  the  higher  attributes  that  by 
common,  by  universal,  consent,  determine  rank  among  the  highest 
of  the  children  of  God.  No,  sir.  It  is  not  that  woman  is  inferior 
to  man,  but  it  is  that  woman  is  different  from  man;  that  in  the 
distribution  of  powers,  of  capacities,  of  qualities,  our  Maker  has 
created  man  adapted  to  the  performance  of  certain  functions  in  the 
economy  of  nature  and  society,  and  women  adapted  to  the  perform-, 
ance  of  other  functions.  One  question  to  be  determined  in  the  dis- 
cussion of  this  subject  is  whether  the  nature  of  woman  is  such  that 


522  REVISED   RECORD.  [Wednesday, 

her  taking  upon  her  the  performance  of  the  functions  implied  in 
suffrage  will  leave  her  in  the  possession  and  the  exercise  of  her 
highest  powers  or  will  be  an  abandonment  of  those  powers  and  on 
entering  upon  a  field  in  which,  because  of  her  differences  from  man, 
she  is  distinctly  inferior.  Mr.  President,  I  have  said  that  I  thought 
suffrage  would  be  a  loss  for  women.  I  think  so  because  suffrage 
implies  not  merely  the  casting  of  the  ballot,  the  gentle  and  peaceful 
fall  of  the  snow-flake,  but  suffrage,  if  it  means  anything,  means 
entering  upon  the  field  of  political  life,  and  politics  is  modified  war. 
In  politics  there  is  struggle,  strife,  contention,  bitterness,  heart- 
burning, excitement,  agitation,  everything  which  is  adverse  to  the 
true  character  of  woman.  Woman  rules  to-day  by  the  sweet  and 
noble  influences  of  her  character.  Put  woman  into  the  arena  of  con- 
flict and  she  abandons  these  great  weapons  which  control  the 
world,  and  she  takes  into  her  hands,  feeble  and  nerveless  for  strife, 
weapons  with  which  she  is  unfamiliar  and  which  she  is  unable  to 
wield.  Woman  in  strife  becomes  hard,  harsh,  unlovable,  repulsive; 
as  far  removed  from  that  gentle  creature  to  whom  we  all  owe  alle- 
giance and  to  whom  we  confess  submission,  as  the  heaven  is 
removed  from  the  earth.  (Applause.)  Government,  Mr.  Presi- 
dent, is  protection.  The  whole  science  of  government  is  the  science 
of  protecting  life  and  liberty  and  the  pursuit  of  happiness,  of  pro- 
tecting our  person,  our  property,  our  homes,  our  wives  and  our  chil- 
dren, against  foreign  aggression,  against  civil  dissension,  against 
mobs  and  riots  rearing  their  fearful  heads  within  this  peaceful  land 
during  the  very  sessions  of  this  Convention.  Against  crime  and  dis- 
order, and  all  the  army  of  evil,  civil  society  wages  its  war,  and  gov- 
ernment is  the  method  of  protection,  protection  of  us  all.  The 
trouble,  Mr.  President,  is  not  in  the  principles  which  underlie  gov- 
ernment. Men  and  women  alike  acknowledge  them  and  would 
enforce  them,  honor  and  truth,  and  justice  and  liberty;  the  difficulty 
is  to  find  out  how  to  protect  them.  The  difficulty  is  to  frame  the 
measure,  to  direct  the  battle,  to  tell  where  and  how  the  blows  are 
to  be  struck  and  when  the  defenses  are  to  be  erected. 

Mr.  President,  in  the  divine  distribution  of  powers,  the  duty  and 
the  right  of  protection  rests  with  the  male.  It  is  so  throughout 
nature.  It  is  so  with  men,  and  I,  for  one,  will  never  consent  to  part 
with  the  divine  right  of  protecting  my  wife,  my  daughter,  the 
women  whom  I  love  and  the  women  whom  I  respect,  exercising 
the  birthright  of  man,  and  place  that  high  duty  in  the  weak  and 
nerveless  hands  of  those  designed  by  God  to  be  protected  rather 
than  to  engage  in  the  stern  warfare  of  government.  (Applause.) 
In  my  judgment,  sir,  this  whole  movement  arises  from  a  false  con- 


August  15.]  CONSTITUTIONAL  CONVENTION.  523 

ception  of  the  duty  and  of  the  right  of  men  and  women  both.  We 
all  of  us,  sir,  see  the  pettiness  of  our  lives.  We  all  see  how  poor  a 
thing  is  the  best  that  we  can  do.  We  all  at  times  long  to  share  the 
fortunes  of  others,  to  leave  our  tiresome  round  of  duty  and  to 
engage  in  their  affairs.  What  others  may  do  seems  to  us  nobler, 
more  important,  more  conspicuous  than  the  little  things  of  our  own 
lives.  It  is  a  great  mistake,  sir,  it  is  a  fatal  mistake  that  these  excel- 
lent women  make  when  they  conceive  that  the  functions  of  men  are 
superior  to  theirs  and  seek  to  usurp  them.  The  true  government 
is  in  the  family.  The  true  throne  is  in  the  household.  The  highest 
exercise  of  power  is  that  which  forms  the  conscience,  influences  the 
will,  controls  the  impulses  of  men,  and  there  to-day  woman  is 
supreme  and  woman  rules  the  world.  (Applause.)  Mr.  President, 
the  time  will  never  come  when  this  line  of  demarcation  between  the 
functions  of  the  two  sexes  will  be  broken  down.  I  believe  it  to  be 
false  philosophy;  I  believe  that  it  is  an  attempt  to  turn  backward 
upon  the  line  of  social  development,  and  that  if  the  step  ever  be 
taken,  we  go  centuries  backward  on  the  march  towards  a  higher, 
a  nobler  and  a  purer  civilization,  which  must  be  found  not  in  the 
confusion,  but  in  the  higher  differentiation  of  the  sexes.  (Applause.) 
But,  Mr.  President,  why  do  we  discuss  this  subject?  This  Conven- 
tion has  already  acted  upon  it.  A  committee,  as  fairly  constituted 
as  ever  was  committee,  has  acted  upon  it,  a  committee  which  had 
among  its  members  four  who  were  selected  by  the  women  who  lead 
this  movement,  which  had  a  much  smaller  number  of  gentlemen 
who  were  known  to  be  opposed  to  it,  the  great  body  of  which  was 
composed  of  men  whose  ideas  and  feelings  upon  the  subject  were 
utterly  unknown,  has  acted  upon  it,  and  reported  to  the  Conven- 
tion. The  Convention  has,  by  a  unanimous  vote,  decided  that  it 
will  not  strike  the  word  "  male "  from  the  Constitution.  Now 
we  are  met,  sir,  by  a  proposition  that  instead  of  performing  the  duty 
which  we  came  here  to  perform,  instead  of  exercising  the  warrant 
given  to  us  by  the  people  to  revise  and  amend  the  Constitution,  we 
shall  have  recourse  in  a  weak  and  shuffling  evasion,  and  then  throw 
back  upon  the  people  the  determination  which  they  charged  us  to 
make  in  this  Convention.  (Applause.)  We  are  asked  to  do  it. 
Why?  to  do  it  from  good  nature,  to  do  it  because  my  friend  from 
New  York,  Mr.  Lauterbach,  is  a  good  fellow;  to  do  it  because  it  will 
please  this  lady  and  that  lady,  who  have  been  importuning  members 
about  this  hall  for  months;  to  do  it,  heaven  knows  for  how  many 
reasons,  but  all  reasons  of  good  nature,  of  kindliness,  of  complais- 
ance, opposed  to  the  simple  performance  of  the  duty  which  we  came 
here  to  discharge  under  the  sanction  of  our  oaths.  Mr.  President, 


524  REVISED  RECORD.  [Wednesday, 

I  hope  that  this  Convention  will  discharge  the  duty  of  determining 
who  shall  vote;  discharge  it  with  manliness  and  decision  of  char- 
acter, which,  after  all,  the  women  of  America,  God  bless  them, 
admire  and  respect  more  than  anything  else  on  this  earth. 
(Applause.) 

Mr.  Goodelle  —  Mr.  President,  several  proposed  amendments,  in 
various  forms,  were  submitted  to  strike  the  word  "  male  "  from 
article  2,  section  I,  of  the  Constitution,  proposing  thereby  that 
universal  female  suffrage  should  be  established;  such  propositions 
have  been  supported  by  memorials  numerously  signed  by  both 
sexes  from  the  different  parts  of  the  State,  and  those  have  been  met 
by  a  larger  number  of  memorials  from  women  only,  protesting 
against  any  change  which  would  cast  upon  womankind  the  burden 
of  elective  franchise,  and  what  it  almost  necessarily  involves.  Other 
proposed  amendments  have  been  submitted  to  so  amend  the  Con- 
stitution as  to  permit  of  qualified  or  restricted  woman  suffrage ;  also, 
to  empower  the  Legislature  to  make  laws  looking  to  universal 
female  suffrage;  also,  propositions  to  submit  the  question  to  the 
women  of  the  State,  to  be  determined  by  their  votes  alone;  also, 
proposed  amendments  to  submit  to  the  electors  of  the  State,  in  a 
separate  proposition,  to  be  in  that  manner  determined,  whether  or 
not  universal  female  suffrage  should  be  granted.  While  various 
other  amendments  have  been  proposed  and  considered  by  your 
committee,  looking  towards  securing  the  same  objects,  the  fore- 
going may  be  regarded  as  embracing  the  scope  of  the  propositions 
referred  to,  and  considered  by  the  committee  on  that  subject. 

The  suffrage  memorials  and  petitions  have  been  confined  entirely 
and  exclusively  to  the  main  proposition,  to  strike  the  word  "  male  " 
from  the  Constitution,  and  to  grant  universal  suffrage  to  women, 
and  the  protests  have  been,  likewise,  exclusively  directed  against 
that  proposition;  no  middle  ground  is  sought  or  suggested  by  the 
voluminous  petitions  or  protests. 

Your  committee,  fully  appreciating  the  gravity  of  the  questions 
involved  and  the  great  and  widespread  public  interest  taken  therein, 
approached  and  considered  these  various  propositions  with  unusual 
deliberation  and  care,  every  member  being  actuated  only,  as  I 
believe,  by  a  profound  determination  and  purpose  of  conscientiously 
reaching  a  conclusion,  which,  in  his  judgment,  should  be  for  the 
best  interests  of  the  commonwealth  and  all  of  its  citizens.  A  large 
amount  of  time  has  been  devoted  to  the  thorough  consideration  of 
the  question;  many  public  and  private  hearings  have  been  cheerfully 
accorded  to  the  advocates  of  either  side,  and  no  one  has  been  refused 
or  turned  away  unheard,  requesting  it.  And  we  are  happy  to  be 


August  15.]  CONSTITUTIONAL  CONVENTION.  525 

able  to  state  that  upon  the  main  proposition,  to  strike  the  word 
"  male  "  from  the  Constitution,  which  was  the  line  along  which  the 
contest  was  waged,  your  committee  was  unanimous  in  concluding 
that  the  proposed  amendments,  in  that  regard,  should  be,  and  the 
same  were,  unanimously  rejected. 

And  upon  all  the  other  propositions  a  like  result  followed,  with 
the  exception  of  the  bill,  the  adverse  report  of  which  is  now  under 
consideration,  wherein  it  was  determined,  by  a  vote  of  thirteen  to 
four,  that  it  should  be  rejected,  and  one  other  to  be  considered, 
which  was  rejected  with  but  one  dissenting  vote.  I  desire  to  say, 
at  this  time,  that  I  was  astonished  to  hear  the  gentleman  from  Chau- 
tauqua  suggest  to  this  Convention,  when  the  adverse  report  on  the 
amendment  proposed  by  him  was  presented,  that  he  had  no  oppor- 
tunity to  appear  before  the  committee.  I  trust  that  reflection  will 
convince  him  of  his  error. 

And  we  hope  that  it  may  not  be  inappropriate,  at  least,  to  make 
brief  mention  of  some  of  the  many  reasons  which  actuated  the 
majority  of  the  committee  in  its  determination  of  the  questions 
involved.  It  has  been  repeatedly  claimed  and  strongly  urged  that 
suffrage  is  a  natural  and  inherent  right  of  all  the  citizens.  We  are 
compelled  to  dissent  from  that  proposition  as  one  which,  in  our 
judgment,  is  wholly  at  variance  with  the  theory  and  history  of  all 
political  governments. 

We  think  there  can  be  no  question  but  that  the  privilege  or  duty 
of  suffrage  (however  it  may  be  termed)  is  not  a  natural  right  of 
the  citizen,  but  it  is  conferred  by  the  State,  and  not  for  the  benefit, 
or  to  gratify  the  wish,  of  the  recipient,  but  solely  for  the  benefit  of 
the  State  in  all  that  the  term  Implies;  we  prefer  to  call  it,  at  least, 
a  moral,  if  not  a  legal,  duty,  imposed  upon  the  individual  citizen  for 
the  reason  that  its  exercise  by  him  will  make  for  the  best  interests 
of  the  whole  community,  a  duty  to  be  exercised  kindred  to  that 
which  compels  men,  unwillingly,  to  give  up  their  property,  their 
liberty,  their  lives  on  the  battlefield,  if  the  welfare  of  the  State,  the 
community,  demands  the  sacrifice. 

To  that  effect  are  the  numerous  decisions  of  the  highest  courts 
of  this  and  sister  States,  as  well  as  the  federal  courts,  and  we  know 
of  none  to  the  contrary.  Neither  on  principle  nor  legal  authority, 
then,  do  we  think  the  question  one  open  to  discussion.  Whether 
or  not  a  large  number  of  men  and  women  ask  for  female  suffrage  — 
whether  women  are  taxed  as  to  their  property,  or  pay  taxes,  or  not  — 
are  considerations  of  very  minor  importance,  if  not  irrelevant.  The 
great  paramount  and  controlling  question  to  be  ever  kept  in  mind, 
in  this  discussion  by  the  Convention  is,  is  it  so  clear  that  the  State 


526  REVISED   RECORD.  [Wednesday, 

will  be  benefited,  and  so  benefited  that  we  are  called  upon  by  the 
pressing  demands  of  the  State  to  undertake  an  experiment  so  revo- 
lutionary in  its  character,  and  as  to  which  the  utmost  that  can  be 
urged  is  that  the  effects  upon  the  State  and  nation  would  be  a  mat- 
ter of  conjecture? 

Shorn,  then,  of  all  irrelevant  matter,  the  precise  question  is,  not 
whether  or  not  large  numbers  of  male  and  female  citizens  ask  for 
it,  or  protest  against  it,  or  are  taxed  or  not,  but  is  it  for  the  benefit 
of  the  State,  its  institutions,  and  all  its  citizens,  that  the  proposed 
amendment  should  be  adopted? 

Would  it  make  more  secure  the  stability  and  perpetuity  of  our 
government  and  the  free  institutions  thereunder,  and  would  it 
increase  the  prosperity  and  happiness  of  the  citizens  of  the  State, 
and  consquently  elevate  them  in  all  those  things  pertaining  to  the 
good  order  and  obedience  to  law  which  the  State  expects  and  has 
the  right  to  demand? 

One  of  the  most  eminent,  and  we  think,  the  ablest,  advocate  of 
female  suffrage  at  the  present  day,  with  great  fairness,  lays  down 
the  proposition  that:  "The  advocates  of  female  suffrage  seek  to 
change  the  relation  of  the  sexes  which  has  existed  since  the  founda- 
tion of  the  earth." 

Coming  from  such  a  source,  the  suffragists  must,  and  doubtless 
do,  accept  the  declaration  with  its  full  import.  We  must  concur 
in  the  well-expressed  opinion  of  that  eminent  American  and  good 
friend  of  mankind,  Horace  Greeley,  in  his  report  to  the  Convention 
of  1867,  as  chairman  of  the  Committee  on  Suffrage,  wherein  he  held 
that  the  proposition  to  extend  the  elective  franchise  to  women  would 
be  an  "  innovation  so  revolutionary  and  sweeping  —  so  openly  at 
war  with  the  distribution  of  duties  and  functions  between  the  sexes, 
as  venerable  and  pervading  as  government  itself,  and  involving 
transformation  so  radical  in  society  and  domestic  life,"  that  it  should 
be  rejected. 

If,  then,  we  are  right  in  concluding  that  suffrage  is  granted  by 
the  State,  for  the  benefit  of  the  State,  as  aforesaid,  and  it  is  sought 
"  to  change  a  relation  between  the  sexes  which  has  existed  from 
the  foundation  of  the  earth,"  as  the  woman  suffrage  advocates 
declare,  it  follows  that  the  experiment  suggested  is  one  decidedly 
revolutionary  in  its  character  —  a  change  fundamental  in  the  whole 
social  function  of  woman  to  be  engrafted  into  the  organic  law  with 
all  that  such  change  involves. 

This  is  not  a  question  for  frantic  appeals  or  empty  declaration,  or 
where  resort  should  be  had  to  passion,  prejudice  or  sympathy,  but 
its  consideration  should  be  addressed,  alone,  to  the  judgment  and 


August  15.]  CONSTITUTIONAL  CONVENTION.  527 

intellect  of  this  Convention,  and  disposed  of,  after  calm  inquiry, 
for  the  best  interests  of  the  State  and  its  people,  like  others  before  us. 

We  believe  that  if  all  the  sentimentality  is  laid  aside,  as  it  should 
be,  and  this  question  is  considered  with  the  seriousness  which  it 
deserves,  we  shall  all  agree  upon  the  proposition  which  ought  to 
be,  if  it  is  not,  axiomatical,  to  wit:  That  this  Convention  should  not 
enter  this  radical  and  revolutionary  field,  and  change  the  organic 
law  as  suggested,  unless  well-defined  benefits  to  the  State  can  be 
pointed  out  to  result  therefrom,  and  that  such  be  reasonably  well 
established;  we  might  well  go  further  and  insist  that,  before  we  con- 
sent to  the  proposition,  so  contrary  to  the  concensus  of  opinion 
and  of  the  political  governments  of  nearly  the  whole  civilized  world, 
the  absolute  necessities  of  the  State,  for  the  endurance  of  our 
government  —  for  the  maintenance  of  society,  of  law  and  order  — 
are  not  only  pressing,  but  demand  a  change;  but,  be  that  as  it  may, 
it  will  not  do  for  us,  as  prudent  men,  to  undertake  so  revolutionary 
and  what,  at  least,  might  be  a  dangerous  experiment,  in  thus  chang- 
ing the  fundamental  law,  if  the  apparent  result  would  be  indifferent, 
or  simply  imagined,  speculative,  or  vaguely  defined  benefits  to  the 
State  may  appear  to  come  therefrom  —  but  benefits  to  the  State, 
and  all  its  people,  tangible,  substantial,  well-defined,  and,  at  least, 
reasonably  certain  from  the  logic  of  events,  should,  as  results,  be 
foreseen. 

Neither  of  the  advocates  of  woman  suffrage,  in  their  interesting 
and  elaborate  addresses  before  your  committee,  or  in  their  writings 
(upon  whom  the  burden  clearly  rests),  or  by  the  arguments  on  this 
floor,  or  in  any  other  manner,  has  it  been  shown  that  any  certain, 
well-defined  or  tangible  benefits  would  result,  either  to  the  State  or 
to  the  women  themselves,  by  the  adoption  of  female  suffrage. 

There  appear  no  wrongs  to  women  that  man  has  refused  to 
redress,  no  provisions  for  her  benefit  that  he  has  refused  to  make, 
no  profession  or  business  closed  to  her,  no  barrier  interposed  to  her 
development  and  advance  in  any  direction  in  which  her  sex  permits 
her  to  direct  her  footsteps;  and,  furthermore,  from  the  State  of 
Wyoming,  where  woman  suffrage  has  existed  for  twenty-five  years, 
a  distinguished  United  States  Senator,  at  the  request  of  the  advo- 
cates of  the  cause,  appeared  before  your  committee  to  inform  them 
from  his  own  observation  as  to  the  practical  results  of  universal 
suffrage  in  that  State ;  although  an  advocate  of  the  doctrine  on  prin- 
ciple, and  having  been  elected  to  Congress  in  part  by  the  female  vote 
of  the  State,  yet,  with  eminent  candor  and  fairness,  he  confessed  his 
inability  to  point  to  a  single  instance  wherein  the  State  or  its  woman- 
kind had  been  benefited  by  female  suffrage.  The  most  favor- 


528  REVISED   RECORD.  [Wednesday, 

able  inference  for  the  suffragists  that  could  be  drawn  from  the 
statements  was  that  the  result  is  indifferent  in  Wyoming;  while 
others  of  equally  high  authority  speak  quite  disparagingly  of  its 
practical  effects  in  the  State.  And  even  Governor  Waite,  of  Kansas, 
a  Populist  and  an  avowed  advocate  of  female  suffrage,  in  a  recent 
announcement  declared:  "  It  must  be  admitted  that  the  effect  which 
female  suffrage  will  produce  upon  the  State  and  nation  is  a  matter 
of  conjecture.  In  Wyoming,  to  my  knowledge,  no  extraordinary 
progress  has  been  made  in  the  line  of  political  reform  that  can  be 
traced  to  female  suffrage." 

But  however  much  of  benefit  might  be  claimed  or  shown  from 
woman  suffrage  in  that  State,  we  would  still  regard  it  as  of  little 
if  any  consequence  in  determining  the  expediency  of  engrafting  in 
the  organic  law  of  this  State  the  enactment  under  conisderation. 

It  could  not  be  fairly  claimed  that  Wyoming,  with  a  population 
of  scarcely  100,000,  scattered  over  a  territory  in  area  twice  the  size 
of  this  State,  with  no  cities  of  any  considerable  size,  could  furnish  a 
precedent  for  the  action  of  this  Convention  in  revising  or  amending 
the  fundamental  law  of  our  State,  with  its  over  six  millions  of  popu- 
lation and  its  vast  and  densely  populated  cities  —  its  seething  cal- 
drons of  political  heat  and  excitement,  hotbeds  of  vice  and  corrup- 
tion —  developing  swarms  of  criminals,  with  no  regard  for  law  or 
morality  in  the  frenzied  contest  for  party  or  personal  supremacy  so 
often  recurring. 

While,  therefore,  it  has  not  been  demonstrated,  and  does  not 
appear,  that  any  well-defined  benefit  would  arise  from  the  enactment 
asked  for,  and  the  experiment  of  twenty-five  years  (spoken  of), 
where  it  has  been  tested  under  the  most  favorable  circumstances, 
having  produced  but  indifferent  results,  it  follows,  if  our  premises 
be  correct,  without  further  suggestion,  that  it  would  be  unwise  for 
this  Convention  to  recommend  by  its  action,  female  suffrage  or  the 
proposition  under  consideration. 

But,  to  go  further,  it  seems  to  us  quite  clearly,  that  instead  of 
benefits,  positive  evil  would  result,  not  only  to  the  State,  but  to 
womankind,  by  conferring  suffrage  upon  females.  We  cannot  elabo- 
rate, but  only  suggest  some  of  the  more  serious  and  fundamental 
objections.  What  is  one  of  the  dangers  to  the  State?  In  our  coun- 
try the  unit  of  society,  of  the  State,  is  the  home,  or  the  family - 
the  whole  aggregation  is  called  society  —  the  State.  And  from 
those  units  the  State  derives  its  power,  and  government  its  stability, 
and  in  whatever  way,  or  by  whatever  means  those  units  are  weak- 
ened, so  does  the  power  of  the  State  become  weakened,  and  hence 
the  stability  of  our  government  becomes  impaired. 


August  15.]  CONSTITUTIONAL  CONVENTION.  529 

In  other  words,  in  proportion  as  this  State,  called  the  home  within 
a  State,  is  maintained  in  its  strength  and  integrity,  the  whole  State 
is  strong,  healthy  and  prosperous.  It  is  the  fountain  of  private  and 
public  morality  —  the  source  of  life-giving  blood  of  the  State  — 
and  whatever  threatens  the  destruction  or  impairing  of  the  home 
is  a  direct  menace  to  the  State.  If  the  mother  and  wife  vote  with, 
and  under  the  direction  of  the  husband,  whether  for  good  or  evil, 
the  vote  of  the  husband  is  simply  duplicated;  if  against  him,  and 
contrary  to  his  wishes,  what  may  follow? 

It  is  a  mere  sophism  to  say  that  the  elector  begins  and  ends  the 
exercise  of  suffrage  by  casting  a  ballot  —  that  no  harm  to  the  well- 
being  of  the  home  could  come  from  the  wife  simply  dropping  a  piece 
of  paper  into  a  ballot-box.  But  what  of  the  effects  of  the  wife 
insisting  upon  voting  and  electioneering  against  the  most  intimate, 
personal  and  business  friend  of  her  husband,  urging  and  working 
for  the  passage  of  laws  obnoxious  to  him.  And  where  there  are 
children,  striving  against  the  other  to  capture  recruits  for  their 
respective  sides  at  the  family  -altar,  the  table  and  fireside  of  the 
home,  and  at  the  close  of  the  contest  the  defeated  party  to  be  met 
with  taunts  and  sneers  instead  of  sympathy? 

Such  possibilities  should  not  be  considered  simply  with  respect  to 
families  bound  together  with  the  strongest  ties  of  reciprocal  affec- 
tion, which  are  found  in  our  ideal  homes,  but  should  especially  be 
considered  in  those  cases  where,  the  family  tie  is  weakest,  whether 
from  incompatibility,  inexperience,  suspected  infidelity  or  estrange- 
ment from  whatever  cause;  in  these  cases  the  strain  upon  the  marital 
and  family  relation  would  be  most  keenly  felt.  Other  illustrations 
without  number  force  themselves  upon  every  thoughtful  mind. 

With  women  enfranchised  and  in  politics,  assuming  political 
leadership,  striving  for  public  office,  aiding  in  primaries,  electioneer- 
ing at  the  polls,  becoming  ambitious  orators  on  the  stump,  in  short, 
doing  what  men  now  do  in  heated  political  contests  of  the  State, 
suggest  too  strongly,  not  only  the  possibility,  but  the  probability, 
if  not  the  certainty,  of  the  introduction  of  political  dispute  and  party 
work  in  family  life,  which  would  develop  and  increase  estrange- 
ment, separations,  infidelity  and  divorce,  and  the  consequent  destruc- 
tion of  home. 

It  would  seem  that  this  great  danger  to  the  home  resulting  in 
conferring  the  franchise  upon  married  women  was  recognized  in 
England  two  years  ago.  When  the  women  in  that  country  were 
demanding  parliamentary  suffrage,  the  bill  then  proposed  in  Parlia- 
ment confined  the  suffrage  to  spinsters  and  widows,  thereby  practi- 
34 


530  REVISED  RECORD.  [Wednesday, 

cally  making  thereafter  marriage  a  cause  for  disfranchisement,  a 
penal  offense. 

in  that  contest,  there  being  no  proposition  to  extend  suffrage  to 
married  women,  but  only  to  the  unmarried,  Gladstone  was  appealed 
to,  to  give  his  views  upon  the  proposed  measure,  by  the  women 
demanding  suffrage,  offering  their  support  if  he  would  declare  him- 
self in  its  favor,  and,  although  he  had  spoken  as  if  he  thought  the 
change  desirable,  upon  mature  reflection,  wrote,  viz. :  "  I  speak  of 
the  change  as  being  a  fundamental  change  in  the  whole  social  func- 
tion of  women,  because  I  am  bound,  in  considering  this  bill,  to  take 
into  view  not  only  what  it  enacts,  but  what  it  involves.  *  *  *  It 
proposes  to  place  the  individual  woman  on  the  same  footing  in 
regards  to  parliamentary  elections  as  the  individual  man;  she  —  not 
the  individual  woman,  marked  by  special  tastes  possessed  of  special 
gifts,  but  the  woman  as  such  —  is  by  these  changes  to  be  plenarily 
launched  into  the  whirlpool  of  public  life,  such  as  it  is  in  the  nine- 
teenth century,  and  such  as  it  is  to  be  in  the  twentieth  century. 
*  A  permanent  and  vast  difference  of  type  has  been 
impressed  upon  woman  and  man,  respectively,  by  the  Maker  of  both. 
These  differences  of  special  offices  rest  mainly  upon  causes  not 
flexible  and  elastic  like  most  mental  qualities,  but  physical,  and,  in 
their  nature,  unchanging.  I,  for  one,  am  not  prepared  to  say 
which  of  the  two  classes  has  the  higher,  and  which  the  other  prov- 
ince, but  I  recognize  the  subtle  and  profound  character  of  the  differ- 
ence between  them.  I  am  not  without  fear,  lest,  beginning  with  the 
state,  we  should  eventually  have  been  found  to  have  intruded  into 
what  is  yet  more  fundamental  than  statehood,  the  precinct  of  the 
family,  and  should  dislocate  or  injuriously  modify  the  relations  of 
domestic  life.  *  *  *  My  disposition  is  to  do  for  her  everything 
which  is  free  from  danger  or  reproach,  but  to  take  no  step  in  advance 
until  I  am  convinced  of  its  safety.  The  stake  is  enormous.  The 
affirmation  pleas  are  to  my  mind  not  clear,  and,  if  I  thought  them 
clearer,  I  should  deny  that  they  are  pressing.  I  earnestly  hope  that 
the  House  of  Commons  will  decline  to  give  a  second  reading  to  the 
woman's  suffrage  bill." 

If  Gladstone's  fears  for  the  well-being  of  the  State,  the  family  and 
domestic  relations  were  well  founded  in  regard  to  suffrage  beinur 
conferred  upon  unmarried  women  the  evil  results  to  the  State  and 
family  of  throwing  the  wife  and  mother  into  the  maelstrom  of 
politics  of  this  country,  can  scarcely  be  doubted. 

It  will  not  do  to  assume  that  women  will  generally  vote  as  their 
husbands  do.  and  thus  evil  to  their  families  be  avoided,  because  that 
would  be  to  renounce  most  of  the  considerations  advanced  in  favor 


August  15.]  CONSTITUTIONAL  CONVENTION.  531 

of  the  suffrage  movement.  It  is  said  by  an  eminent  writer  that  the 
"  coherence  and  permanence  of  the  family  depend  upon  the  differ- 
ence in  the  mental  and  emotional  constitution  of  men  and  women." 
The  family  is  a  union  of  two  manifestations  of  a  common  human 
nature,  masculine  and  feminine,  of  the  soul  as  well  as  body; 
moulding,  governing  and  guiding  the  children,  each  after  its  own 
manner,  and  diffusing  through  society  the  blended  influences  of  wife, 
mother,  daughter,  sister,  and  husband,  father,  son  and  brother.  The 
bearing  of  these  principles  upon  the  relation  of  wives  and  mothers 
to  the  suffrage  is,  that  to  govern  the  State  would  unfit  the  woman 
for  her  position  in  the  family. 

The  writer  forcibly  argues  the  correctness  of  this  proposition, 
claiming  that  feminine  instincts  will  not  preserve  the  woman,  if  she 
be  plunged  into  politics,  but  that  she  will  gradually  be  changed  in 
her  intellectual,  moral  and  emotional  sensibilities,  according  to  the 
laws  of  evolution,  environment  and  culture,  approaching  the  char- 
acter and  developing  the  mental  and  moral  constitution  of  man,  to 
the  disruption  of  the  family  and  the  detriment  of  the  State. 

And  we  think,  furthermore,  it  would  be  harmful  and  pernicious 
to  the  interests  of  the  State,  as  well  as  contrary  to  the  fundamental 
principles  of  our  political  system,  to  invest  with  controlling  powers 
of  legislation  that  majority  of  our  citizens,  which  concededly  would 
be  unable  to  enforce  their  laws  by  physical  force,  if  necessity 
required. 

Nor  would  benefit  accrue  to  the  State  by  taking  women  from  that 
special  maternal  sphere  of  duty  and  responsibility  ordained  by 
nature,  the  bearing  and  rearing  of  children,  to  perpetuate  and  replen- 
ish the  population;  the  tendency,  at  least,  would  be  detrimental  to 
the  welfare  of  the  commonwealth,  and  to  menace  the  peculiar  con- 
ditions upon  which  the  very  existence  of  the  State  depends. 

To  confer  upon  women  the  right  to  vote,  with  all  that  it  involves, 
in  our  judgment,  would  not  be  productive  of  good,  but  rather  of 
evil  to  womankind,  also.  For  woman  to  plunge  into  the  "  filthy 
pool  of  politics  "  of  this  day  and  age,  and  contend  with  the  vicious 
elements  in  political  campaigns,  and  in  an  atmosphere  from  which 
she  has  hitherto  stood  aloof  —  to  subject  her  to  the  duties  of  police 
and  of  the  jury  —  to  compel  her  to  bear  arms  for  the  protection  of 
the  State,  and  to  perform  the  thousand  and  one  other  duties  of 
offices  now  cast  upon  the  electors  of  the  State  for  its  government  and 
protection,  seems  to  us  so  unnatural  as  to  be  abhorrent,  and  would 
tend  not  only  to  the  degradation  of  female  nature  and  instinct,  but 
to  divest  her  of  that  power  which  she  now  exercises  and  privileges 
she  now  enjoys  by  reason  of  her  feminine  charms  and  the  chivalric 


532  REVISED   RECORD.  [Wednesday, 

spirit  of  the  opposite  sex  toward  her.  The  greatest  refining  influ- 
ence of  society  at  the  present  day  arises  from  the  respect  shown  to 
women,  as  such,  by  men. 

The  lessening  or  destruction  of  that  sentiment  would  be  unfortu- 
nate for  women  as  well  as  men.  It  is  too  much  to  expect  that  in 
the  bitter  struggle  of  politics,  such  sentiment  would  not  be  impaired 
or  greatly  weakened,  if  not  wiped  out,  and  we  greatly  fear  that  the 
special  courtesy  to  women  now  existing,  arising  from  that  influence 
peculiar  to  them,  and  a  dependence  on  their  part,  would  be  swept 
away  when  they  contend  on  the  same  plane  with  men  in  the  political 
arena. 

That  she  is  not  oppressed,  but  enjoys  special  privileges  and 
advantages  over  the  opposite  sex,  arising  from  legislation  and  com- 
mon law,  as  well  as  from  the  courtesy  universally  conceded  by  the 
male  population,  will  readily  be  conceded  by  every  lawyer  in  this 
Convention  and  cannot  be  denied.  As,  in  times  of  common  peril, 
whether  in  shipwreck,  conflagration  or  from  any  of  the  countless 
disasters  to  which  all  are  liable  to  be  subjected,  her  safety  is  first  to 
be  considered. 

That  the  government,  courts  and  juries  give  to  her  rights,  both 
of  property  and  person,  special  protection,  is  also  within  the  knowl- 
edge and  experience  of  every  lawyer.  And  many  of  us  must  con- 
cede the  force  of  what  an  eminent  writer  uttered  when  he  said,  "  In 
jury  cases,  at  least,  the  difficulty  is  not  for  women  to  get  justice 
against  men,  but  for  men  to  get  justice  against  women." 

To  take  away  or  to  endanger  the  special  privileges  enjoyed  by 
the  1,500,000  adult  women  of  this  State  (although  requested  by  a 
meagre  minority  of  about  fifteen  per  cent),  by  changing  the  relation 
of  the  sexes  and  placing  them  upon  a  common  political  plane  with 
men,  would  not  be  just  to  the  other  large  percentage  of  women  who 
do  not  ask,  but  protest  against  it,  and  would  be  not  only  against  the 
interests  of  the  State,  but  against  the  interests  of  all  the  women  of 
the  State. 

And  in  concluding  our  consideration  of  the  evil  effect  on  woman- 
kind, we  cannot  refrain  from  emphasizing,  as  well  as  supporting,  our 
views,  by  reference  to  the  words  of  Bishop  Vincent,  the  founder  of 
Chautauqua,  a  former  ardent  advocate  of  woman  suffrage,  which  have 
just  come  to  us.  He  says:  "  Years  of  wide  and  careful  observation 
have  convinced  me  that  the  demand  for  woman  suffrage  in  America 
is  without  foundation  in  equity,  and,  if  successful,  must  prove  harm- 
ful to  American  society.  *  *  *  The  instinct  of  motherhood  is 
against  it.  The  basal  conviction  of  our  best  manhood  is  against  it. 
The  movement  is  at  root  a  protest  against  the  relation  and  func- 


August  15.]  CONSTITUTIONAL  CONVENTION.  533 

tions  by  virtue  of  which  each  sex  depends  upon  and  is  exalted  by 
the  other.  This  is  a  theory  of  politics  tending  to  the  subversion  of 
the  natural  and  divine  order,  which  would  make  man  less  a  man, 
and  woman  less  a  woman.  Woman  now  makes  man  what  he  is. 
She  controls  him  as  babe,  boy,  manly  son,  brother,  lover,  husband, 
father  —  her  influence  is  enormous.  If  she  uses  it  wisely,  she  needs 
no  additional  power.  If  she  abuses  her  opportunity,  she  deserves 
no  additional  responsibility.  Her  womanly  weight,  now  without 
measure,  would  be  limited  to  the  value  of  a  single  ballot,  and  her 
control  over  from  two  to  five  additional  votes,  forfeited.  Free  from 
the  direct  complications  and  passions  of  the  political  arena,  the  best 
women  may  exert  a  conservative  and  moral  influence  over  men  as 
voters.  Force  her  down  into  the  same  bad  atmosphere,  and  both  men 
and  women  must  inevitably  suffer  incalculable  loss.  We  know  what 
women  can  be  in  the  '  commune,'  in  '  riots,'  and  on  the  '  rostrum.' 
Woman  can,  through  the  votes  of  man,  have  every  right  to  which 
she  is  entitled.  All  she  has  man  has  gladly  given  her.  It  is  his 
glory  to  represent  her.  To  rob  him  of  his  right  is  to  weaken  both. 
He  and  she  are  just  now  in  danger  through  his  mistaken  courtesy." 

Many  other  considerations  against  female  suffrage  occur  to  us, 
which  time  will  not  allow  us  even  to  suggest.  But  the  question  of 
taxation  without  representation  has  been  so  strongly  urged,  and  on 
this  floor,  as  a  gross  injustice  to  women,  that  we  feel  called  upon  to 
barely  allude  to  it.  We  cannot  accept  the  conclusion  of  those  urging 
the  proposition.  We  cannot  concede  that  there  exists  any  relation 
whatever  in  fact  or  theory,  between  taxation  and  the  voting  power, 
but  the  contrary  is  true. 

The  property  of  aliens  and  minors  is  taxed  with  no  voting  power 
behind  it.  Taxes  are  not  levied  as  an  equivalent  for  the  suffrage. 
The  voting  power  of  the  elector  in  nowise  depends  upon  his  amount 
of  property,  or  whether  he  is  taxed,  or  has  taxable  property  or  not. 
The  wealthiest  elector  in  the  State  has  no  greater  voting  power  than 
the  poorest  man  who  has  not  a  place  to  lay  his  head.  Each  has  one, 
and  only  one  vote.  'All  electors,  as  to  the  power  to  vote,  stand  upon 
a  common  level,  with  no  property  qualification  controlling,  modify- 
ing, or  in  the  least  affecting  the  right. 

Taxes  are  levied  and  collected  alike,  and  in  the  same  proportion, 
upon  the  property  of  the  voter  and  non-voter,  of  the  sane  and 
insane,  of  aliens  and  citizens,  of  adults  and  infants,  of  men  and 
women,  as  involuntary  contributions  to  the  State,  for  the  protection 
of  the  property,  and  for  the  benefit  and  advancement  of  the  whole 
community.  Believing,  therefore,  that  the  exercise  of  suffrage  is 
not  a  natural  or  inherent  right,  but  a  power  or  duty  to  be  conferred 


534  REVISED   RECORD.  [Wednesday, 

by  the  State,  solely  for  its  benefit,  that  there  is  no  wrong  done  to  the 
individual,  as  such,  asking  it,  by  a  refusal,  that  the  proposed  meas- 
ure is  of  a  nature  revolutionary  in  its  character,  and  before  adopted 
by  the  State,  through  this  Convention,  well-defined  benefits  to 
result,  and  pressing  necessities  of  the  State,  should  be  seen  to  exist, 
pointed  out,  and,  at  least,  reasonably  well  established,  demanding 
the  same;  none  of  which  in  this  case  seem  to  exist  or  to  have  been 
established;  but  believing,  on  the  other  hand,  that  by  its  adoption 
great  evil  would  result  to  tlie  State  and  all  its  people,  and  especially 
to  womankind,  we  are  compelled  to  resort  against  all  the  proposi- 
tions lookng  towards  conferring  suffrage  upon  females.  And 
because,  from  profound  conviction,  a  few  of  the  reasons  for  which 
we  have  given,  we  are  opposed  to  female  suffrage,  so  are  we  unalter- 
ably opposed  to  submitting  to  the  people  the  proposition  now 
under  consideration,  the  Committee  on  Suffrage  have  unanimously 
reported  against  granting  it,  by  refusing  to  strike  out  the  word 
"  male  "  from  the  Constitution,  which  report  has  been  agreed  to  by 
this  Convention.  And  by  what  logic  are  we  now  asked  to  recom- 
mend to  the  people  to  pass  upon  that  which  we  have  rejected,  and 
by  our  action  declared  should  find  no  place  in  the  organic  law?  We 
are  for  female  suffrage  or  we  are  against  it.  If  we  believe  it  right, 
wise,  and  for  the  weal  of  this  commonwealth,  and  that  it  ought  to 
be  adopted,  our  duty  lies  clearly,  in  the  one  direction,  to  give  it  an 
abiding  place  in  the  fundamental  law. 

If,  on  the  other  hand,  we  believe  it  is  wrong  —  against  the  inter- 
ests of  the  State  —  and  a  proposition  so  revolutionary  in  its  char- 
acter, that  we  dare  not  take  the  responsibility  of  giving  it  such  a 
place,  let  us  have  the  courage  of  our  conviction,  and  by  our  acts 
declare  that  we  will  discharge  the  duties  imposed  upon  us,  which 
we  have  sworn  faithfully  to  do,  fearlessly,  and  to  the  best  of  the 
ability  God  has  given  us,  and  that  we  will  not  relegate  to  the  people, 
to  dispose  of  those  questions,  to  us  submitted,  by  us  considered, 
investigated  and  rejected,  thereby  endangering  the  entire  work  of 
this  Convention.  Was  it  for  such  purpose  that  we  were  elected? 
Shall  we  thus  endeavor  to  avoid  the  responsibility  thrown  upon  us, 
which  we  have  assumed? 

But  this  question  I  leave  for  others  more  fully  and  ably  to  dis- 
cuss. To  briefly  consider  the  main  proposition,  and  to  set  forth 
some  of  the  reasons  for  our  position  thereon,  was  our  only  purpose. 
And  we  venture  to  add  that  reflection  and  study  of  this  question 
have  produced  conviction  so  strong  that  we  must  frankly  say  we 
do  not  believe  that  universal  female  suffrage  will  ever  find  a  place 


August  15.]  CONSTITUTIONAL  CONVENTION.  535 

in  this  State,  circumstanced  as  it  is,  under  our  present  form  of 
government. 

We  think  that  the  strength  of  the  cause  is  at  its  zenith  now;  and, 
as  the  subject  has  become  one  of  great  magnitude,  and  has 
but  recently  claimed  the  attention  and  serious  thought  of  the  people, 
that  as  intelligent  and  reflective  minds  follow  the  investigation,  it 
will  be  more  clearly  demonstrated  and  understood  that  there  exists, 
and  will  continue  to  exist,  under  our  form  of  government,  under- 
lying objections  to  its  adoption  which  are  insurmountable.  It  is  cer- 
tainly, as  pointing  in  that  direction,  significant  that  the  liberal  and 
progressive  Horace  Bushnell,  after  protracted  thought  and  serious 
consideration,  was  forced  to  the  conclusion,  contrary  to  his  former 
conviction,  that  female  suffrage  would  be  a  "  reform  against  nature." 

That  John  Bright,  the  steadfast  friend  of  every  measure  designed 
to  benefit  woman,  who,  in  1867,  voted  in  Parliament  for  woman 
suffrage,  but  many  years  afterwards,  after  a  most  deliberate  recon- 
sideration of  the  whole  question,  spoke  against  their  enfranchise- 
ment, and  in  explanation  of  his  conduct  wrote  the  words  so  pertinent 
here  that  we  quote  them :  "  I  cannot  give  all  the  reasons  for  the 
views  I  take,  but  I  act  upon  the  belief  that  to  introduce  women 
into  the  strife  of  political  life  would  be  a  great  evil  to  them,  and 
that  to  our  sex  no  possible  good  could  be  derived  —  when  women 
are  not  safe  under  the  charge  and  care  of  fathers,  husbands,  brothers 
and  sons,  it  is  the  fault  of  our  non-civilization,  and  not  our  laws. 
As  civilization,  founded  on  Christian  principles,  advances,  women 
will  gain  all  that  it  is  right  for  them  to  have,  though  they  are  not 
seen  contending  in  the  strife  of  political  parties.  "  In  my  experi- 
ence "  (he  adds),  "  I  have  observed  evil  results  to  many  women  who 
enter  heartily  into  political  conflict  and  discussion  —  I  would  save 
them  from  it." 

That  the  eminent  scholar  and  thinker,  Goldwin  Smith,  also,  after 
voting  with  Mr.  Bright  for  female  suffrage,  was  led  to  change  his 
opinion  in  1892  in  the  consideration  of  the  bill  then  pending  in 
Parliament  to  give  the  spinsters  and  widows  the  right  of  suffrage 
in  England,  and  in  an  exhaustive  and  elaborate  essay,  viewing  the 
question  in  all  its  phases,  took  ground  strongly  against  conferring 
suffrage  upon  the  two  classes  of  women  specified  in  the  bill,  after 
considerations  similar  to  those  given  by  Mr.  Bright. 

That  Herbert  Spencer,  also,  after  seriously  reviewing  the  matter 
renounces  his  former  convictions  favoring  female  suffrage,  and  con- 
cludes that  his  former  position  cannot  be  maintained,  saying  that 
he  "  discovers  mental  and  emotional  differences  between  the  sexes, 


536  REVISED   RECORD.  [Wednesday, 

which  disqualify  woman  for  the  burden  of  government  and  the 
exercise  of  its  functions." 

We  have  already  alluded  to  a  similar  change  of  the  views  .  .f 
Gladstone.  It  is  especially  significant  that  Bishop  John  H.  Vincent, 
the  founder  of  Chautauqua  (whose  present  views  we  have  already 
quoted),  who,  perhaps,  has  given  this  question  more  careful  thought 
than  any  other  American,  whose  energy  and  life  have  been  devoted 
to  the  advancement  of  the  interests  of  womankind,  and  after  years 
of  earnest  advocacy  of  woman  suffrage,  and  being  its  public 
defender,  should,  as  a  result  of  after  years  of  wider  and  more  care- 
ful observation  and  thought,  have  become  persuaded  against  his 
former  conviction  that  the  demand  for  woman  suffrage  in  America 
is  not  only  without  foundation  in  equity,  but  would  be  most  harm- 
ful to  American  society  —  harmful  to  the  State,  and  that  ''  both 
men  and  women  would  inevitably  suffer  incalculable  loss  therefrom." 

When  such  intellects,  devoted  to  the  best  interests  of  womankind, 
awake  to  every  true  reform,  to  progress,  the  welfare  of  the  State 
and  society  are,  from  their  more  extended  observation  and  closer 
inductions,  compelled  to  turn  back  upon  their  course  and  conclude 
that  woman  suffrage  would  not  be  in  the  direction  of  true  reform, 
but  a  reform  against  nature,  and  contrary  to  the  interests  of  the 
State  and  all  its  people,  it  leaves  but  small  encouragement  to  the 
advocates  of  the  measure. 

And,  in  closing,  we  beg  leave,  in  behalf  of  the  committee,  to 
express  and  tender  our  sincere  and  profound  sympathies  to  that 
noble  band  of  zealous,  sincere  and  intelligent  ladies  who  have  so 
ably  represented  the  woman  suffrage  cause,  in  their  disappointment 
(if  such  exists)  in  its  report,  but  the  stern  sense  of  duty  to  the  State, 
and  its  conscientious  discharge  pointed  the  way,  unmistakably,  in 
the  one  direction  which  the  committee  followed,  fearlessly,  if 
regretfully.  We  do  not  wish  our  position  to  be  misunderstood. 
We  are  opposed,  strenuously,  to  any  oppression  of  woman,  but  we 
must  as  strenuously  insist  that  she  is  not  oppressed,  but  enjoys 
special  privileges  and  rights,  as  before  suggested,  forbidden  to 
man,  which  we  would  have  preserved  to  her. 

We  do  not  believe  in  the  inferiority  of  woman,  but.  rather,  that 
she  is  vastly  superior  in  all  those  fields  and  pursuits  for  which 
nature  and  God  designed  her.  We  do  not  believe  in  restricting  her 
in  progress,  or  in  the  acquirement  of  attainments,  but,  rather,  in 
the  fullest  expanse,  development,  unfolding  exercise  of  every 
capability  of  her  nature  that  can.  with  the  aid  of  man,  be  given 
her,  not  only  for  her  own  welfare,  but  for  the  benefit  of  mankind. 
But  let  such  progress,  expanse  and  development  be  along  that  line 


August  15.]  CONSTITUTIONAL  CONVENTION.  537 

remembering  that  no  true  reform  exists  contrary  to  its  laws,  but 
so  distinctly  pointed  out  to  her  by  the  laws  of  nature  —  always 
must  be  found  in  pursuing  in  their  pathway. 

We  would  point  her  to  that  great  domain  of  philanthropy,  of 
charity  and  education,  of  the  arts  and  sciences,  and  of  society  at 
large,  wherein  she  has  achieved,  and  may  continue  to  achieve,  such 
signal  success  for  the  benefit  of  the  world,  and  for  the  glory  of  her 
sex,  as  should  satisfy  her  highest  ambition.  (Applause.) 

The  President  —  The  time  has  arrived  for  taking  the  vote. 
Mr.  Dean  called  for  the  ayes  and  noes  which  were  ordered. 

Mr.  Tekulsky  —  Mr.  President,  I  move  a  call  of  the  House  so  that 
every  member  of  this  Convention  here  shall  be  recorded. 

The  President  —  It  will  be  a  very  long  and  elaborate  affair,  Mr. 
Tekulsky. 

Mr.  Dean  —  I  rise  to  a  point  of  order.  The  fact  of  no  quorum 
must  be  determined  by  a  roll  call  before  a  call  of  the  house  is  in 
order. 

The  President  —  The  question  is  whether  the  Convention  will 
order  a  call  of  the  house  as  moved  by  Mr.  Tekulsky,  if  he  insists 
upon  it. 

Mr.  Tekulsky  —  Mr.  President,  I  have  been  requested  by  a  large 
number  of  delegates  to  withdraw  the  motion,  and,  I  therefore,  with- 
draw it. 

The  President  —  The  question  is  on  agreeing  with  the  adverse 
report  of  the  Suffrage  Committee  on  Mr.  Tucker's  constitutional 
amendment  (introductory  No.  194,  printed  No.  195).  The  Secretary 
will  call  the  roll. 

The  Secretary  proceeded  to  call  the  roll. 

.Mr.  Abbott  —  Mr.  President,  I  have  listened  not  only  patiently 
and  courteously,  as  has  been  stated  by  the  eloquent  gentleman  from 
New  York,  to  the  discussion  of  this  question  in  committee  and  else- 
where, but  with  deep  interest  and  with  inexpressible  admiration,  to 
the  elegant  addresses  of  the  noble  women  who  have  so  earnestly 
advocated  their  cause. 

I  gladly  bear  witness  to  the  force  of  their  arguments,  and  to  the 
fairness  and  honesty  with  which  they  have  been  presented,  and  in 
so  far  as  their  conclusions  have  been  drawn  from  correct  premises, 
I  cheerfully  coincide  in  those  conclusions.  I  concede  for  their  sex 
all  that  has  been  claimed  for  it  on  the  lines  of  intelligence,  of  patriot- 
ism, of  devotion  to  duty,  of  love  for  the  race,  and  of  desire  to  pro- 
mote the  best  interests  of  humanitv. 


538  REVISED  RECORD.  I  Wednesday, 

I  go  further.  From  an  experience  derived  from  the  common 
school,  from  the  academy,  from  a  co-educational  college,  and  from 
various  affairs  of  life,  I  am  willing  to  concede  that  so  far  as  mental 
capacity  is  concerned  as  a  sex  they  are  our  equals,  and  as  to  many 
of  those  qualities  which  go  to  make  a  more  perfect  humanity,  they 
our  superiors.  I  concede  that,  in  its  broadest  sense,  they,  with  our 
fathers,  were  the  founders  of  the  State;  that  in  all  the  emergencies 
of  life,  in  times  of  great  public  peril  which  test  the  courage  and 
patriotism  of  the  race  and  demand  the  highest  moral  heroism,  they 
have  been  found  in  the  forefront  of  events.  The  typical  American 
mother  instills  into  the  minds  of  her  sons  their  first  lessons  in  patriot- 
ism, in  temperance,  in  unselfish  devotion  to  duty  and  all  that  goes 
to  make  the  useful  citizen,  the  ruler  of  the  State.  No  great  man  of 
the  English-speaking  race  but  has  been  glad  to  listen  to  the  prudent 
counsels  of  his  mother  or  his  wife.  Indeed,  I  sincerely  believe 
that  no  great  man,  no  man  whose  deeds  are  remembered  in  history, 
ever  lived  who  did  not  inherit  the  elements  which  built  up  that  char- 
acter and  made  it  great  from  his  mother. 

The  one  distinguishing  characteristic  of  the  Anglo-Saxon  race,  so 
marked  as  to  be  noted  by  Tacitus  in  his  Germania,  is  that  in  all  great 
matters  they  consult  their  women.  That  influence  has  always  been 
felt  in  the  affairs  of  this  Republic,  and  will  be  felt  so  long  as  the 
nation  exists. 

To  all  this  I  bear  willing  testimony,  but  to  my  mind  all  this  does 
not  reach  the  vital  point  of  this  controversy.  To  the  doctrine  that 
suffrage  is  a  natural  right,  or  even  an  equitable  right,  as  so  clearly 
discussed  by  the  gentleman  from  Chautauqua,  I  cannot  subscribe. 
To  the  assertion  so  often  made  as  applicable  to  this  question,  "  that 
taxation  without  representation  is  tyranny,"  I  cannot  subscribe.  If 
it  be  true  that  the  ballot  should  depend  on  taxation,  then  the  Goulds 
and  Vanderbilts  of  this  age  might  vote  in  every  election  district 
in  the  land,  and  we  would  soon  degenerate  into  a  government  of 
wealth,  that  most  inexcusable  of  all  tyrannies. 

Nor  can  I  subscribe  to  the  doctrine  of  Mr.  Scott,  that  muscle  is 
the  supreme  test;  that  government  is  necessarily  founded  on  physical 
force.  If  this  were  so,  we  must  take  down  our  statues  of  Lincoln 
and  Sevvard  and  erect  instead  those  of  Sullivan  and  Corbett. 
Behold  their  statues  in  our  public  squares  and  underneath  them 
the  legend,  "  This  is  the  typical  American !  "  What  a  lesson  for 
American  youths. 

If  then,  the  suffrage  is  not  a  natural  right  pertaining  to  all  citizens, 
if  it  is  not  founded  on  the  theory  of  physical  force,  what  is  it,  and  on 
what  equitable  principle  is  its  exercise  based? 


August  15.]  CONSTITUTIONAL  CONVENTION.  539 

I  answer  that  the  suffrage  is  the  foundation  of  popular  govern- 
ment, it  is  the  corner-stone  of  public  institutions,  and  contains  the 
spirit  and  essence  of  democracy. 

The  ballot  is  the  instrumentality  of  sovereignty,  through  its  exer- 
cise the  rulers  of  the  nation  indicate  their  will,  as  Whittier  says, 
"  The  "voter  is  the  uncrowned  king  and  the  crowning  fact,  the  king- 
liest  act  of  freedom,  is  the  freeman's  vote."  The  idea  that  this  potent 
instrument  of  government  is  the  personal  right  of  the  citizen,  and, 
therefore,  should  be  granted  to  woman  it  seems  to  me  is  the  funda- 
mental error  of  this  movement. 

If  it  is  a  personal  right,  the  property  of  the  individual,  then  the 
idea  of  the  corrupt  voter  who  makes  merchandise  of  it  to  the  highest 
bidder  is  a  logical  conclusion. 

I  prefer  the  contrary  doctrine,  that  the  elective  franchise  is  a  trust 
conferred  by  the  State  upon  the  individual  to  be  exercised  for  the 
benefit  of  the  State,  that  in  its  exercise  is  evidenced  the  fact,  that 
the  voter  is  a  sovereign  selected  to  govern  the  State;  that  his  is 
a  solemn  responsibility,  that  upon  him  is  imposed  a  duty  and  a 
burden,  and  upon  his  wise,  intelligent  and  honest  exercise  of  that 
trust,  depend  the  prosperity  and  even  existence  of  the  Republic. 

What,  then,  are  the  best  interests  of  the  State?  This  is  the  vital 
question  to  which  all  else  should  be  subservient.  Do  those  interests 
demand  the  extension  of  the  suffrage  to  women? 

Upon  this  question  history  throws  no  light.  No  government 
has  ever  so  broadened  the  suffrage  as  has  ours.  No  government 
has  ever  existed  based  on  the  idea  of  universal  manhood  suffrage 
until  our  own  untried  experiment. 

The  so-called  republics  of  Greece  and  Rome,  of  Holland  and 
Switzerland,  were  never  broadened  to  make  a  ruling  class  not  based 
on  intelligence  or  wealth,  or  birth  or  land  ownership.  Again,  their 
united  populations  were  but  a  few  millions  and  "all  of  them,"  as 
Phillips  says,  "  have  gone  down  in  the  ocean  of  time."  Our  seventy 
millions,  with  their  diverse  interests,  are  just  trying  the  experiment, 
and  it  remains  to  be  yet  determined  whether  our  institutions  can 
bear  the  terrible  strain. 

The  doctrine  of  universal  suffrage  embraces  not  only  the  intelli- 
gent, the  patriotic,  the  honest,  the  men  of  character  and  of  sense, 
but  also  the  ignorant,  the  corrupt,  the  indifferent  and  the  vicious. 

Which  shall  prevail?  This  is  the  great  problem  of  the  day.  How 
would  the  addition  of  the  female  sex  to  the  mass  of  electors  affect 
this  problem?  Would  it  be  for  good  or  ill? 

I  have  every  confidence  in  the  ability,  the  intelligence  and  the 
patriotism  of  American  womanhood,  and  if  a  majority  of  the  sex 


540  REVISED   RECORD.  [Wednesday, 

were  desirous,  even  willing  to  assume  the  serious  burdens,  duties 
and  responsibilities  of  the  suffrage,  I  for  one  would  not  hestitate  to 
give  them  welcome. 

The  time  may  come  in  the  distant  future  when,  in  order  to  protect 
republican  institutions  and  preserve  our  national  existence,  the  State 
may  be  compelled  to  impose  these  burdens  on  women,  and  when 
that  day  comes  I  do  not  doubt  that  it  will  find  American  woman- 
hood imbued  with  that  same  patriotism  and  love  of  country  which 
they  have  ever  possessed,  ready  to  take  up  these  additional  burdens 
in  defense  of  country  and  liberty.  That  emergency  has  not  yet 
arisen. 

To-day  the  great  majority  of  the  sex  of  this  State  are  protesting 
against  the  imposition  of  this  burden  of  suffrage.  I  cannot  recog- 
nize the  right  of  the  minority  of  women,  however  able,  however 
earnest,  however  patriotic  to  insist  on  these  burdens  being  placed 
upon  their  unwilling  sisters.  The  number  of  indifferent  voters  is 
already  dangerously  large. 

Until  the  majority  desires  the  suffrage,  I  am  opposed  to  the 
proposition.  When  that  time  comes  I  shall  cheerfully  support  it. 
I  believe  the  time  will  surely  come  when  the  intelligent  women  of 
this  State  will  desire  the  suffrage,  and  when  it  comes,  that  it  will 
be  for  the  highest  interest  of  the  State  to  extend  it  to  them.  I 
believe  a  proposition  should  be  incorporated  into  the  Constitution 
providing  for  this  action  of  the  educated  women  of  this  State  when 
the  time  and  occasion  arrive. 

While,  then,  I  am  opposed  to  the  proposition  now  pending,  I  hope 
that  the  adverse  report  will  not  be  agreed  to  and  that  this  matter  may 
be  relegated  to  the  Committee  of  the  Whole,  where  the  amendment 
proposed  by  me  on  the  lines  laid  down  in  this  discussion  and  which 
now  sleeps  in  oblivion  may  be  resurrected  and  receive  the  favorable 
consideration  of  this  Convention.  I  vote  no.  (Applause.) 

Mr.  Ackerly  —  Mr.  President,  I  ask  to  be  excused  from  voting 
and  will  briefly  state  my  reasons  therefor.  Article  I,  section  10  of 
the  present  Constitution,  contains  these  words :  "  No  law  shall  be 
passed  abridging  the  right  of  the  people  reasonably  to  assemble  and 
to  petition  the  government  or  any  part  thereof."  I  suppose  that  we 
can  consider  ourselves  at  present  as  "  a  part  thereof."  On  the  peti- 
tions that  have  come  into  this  House,  considering  that  they  are  not 
more  than  half  genuine,  I  do  not  feel  like  disregarding  them,  but  I 
feel  that  this  matter  should  go  into  the  Committee  of  the  Whole,  and 
there  have  an  opportunity  for  an  amendment  if  the  majority  sees 
fit  to  do  it.  For  that  reason  I  shall  vote  to  have  it  go  there  if 


August  15.]  CONSTITUTIONAL  CONVENTION.  541 

possible,  and  I  withdraw  my  request  to  be  excused  from  voting  and 
vote  no.     (Applause.) 

Mr.  Alvord  —  I  ask  to  be  excused  from  voting  and  will  briefly 
state  my  reasons.  Permit  me  to  say,  Mr.  President,  that  the 
Supreme  Ruler  of  the  universe  will  punish  this  attempted  violation 
of  that  higher  law  laid  down  in  holy  writ  and  on  nature's  page, 
which  points  out  clearly  and  plainly  the  duties  and  province  of  the 
two  sexes.  Those  duties  differ  from  each  other,  but  when  exercised 
as  He  intended  produce  a  harmonious  whole.  I  withdraw  my 
request  to  be  excused  from  voting  and  vote  aye. 

Mr.  Barhite  —  Mr.  President,  I  desire  to  be  excused  from  voting, 
and  will  take  all  the  time  allowed  by  the  rule  to  explain  my  reasons. 
(Laughter.) 

The  President  —  That  will  be  just  three  minutes. 

Mr.  Barhite  —  The  distinguished  gentleman  from  New  York 
(Mr.  Root),  in  the  remarks  with  which  he  favored  us  this  evening, 
has  placed  his  opposition  to  woman  suffrage  upon  the  ground  that 
the  Almighty  has  endowed  her  with  a  peculiar  nature  which  was 
intended  to  fit  her  for  a  different  sphere  in  life.  I  say  to  him  and  I 
say  to  the  gentlemen  of  this  Convention  that  to-day  she  stands  side 
by  side  with  her  brother  in  nearly  every  department  of  human  effort. 
Her  peculiar  nature  does  not  seem  to  have  troubled  her  at  all.  He 
says  that  politics  is  modified  warfare.  I  say  to  him  that  the  practice 
of  the  law  is  real  warfare,  and  yet  in  the  statute  passed  by  the  Legis- 
lature last  winter  it  is  provided  that  neither  color  nor  sex  shall  be  a 
disqualification  for  the  practice  at  the  bar.  As  a  man  I  note  the 
inconsistency;  as  a  lawyer  1  feel  humiliated  that  the  people  of  this 
State  shall  say  that  woman  has  the  nature  and  qualifications  which 
will  permit  her  to  practice  law,  but  has  not  the  nature  and  qualifica- 
tion which  will  permit  her  to  cast  a  paper  ballot.  (Applause.) 
When  the  distinguished  gentleman  finds  himself  pitted  against  some 
keen,  bright,  courageous  and  witty  woman  lawyer,  who  meets  point 
with  point  and  argument  with  argument,  I  hope  then  that  he  will 
rise  high  in  his  place  and  respectfully  protest  to  the  court  against 
allowing  woman  to  present  her  warlike  nature  to  the  public  gaze. 
Mr.  President,  I  withdraw  my  request  to  be  excused  from  voting, 
and  vote  no.  (Applause.) 

Mr.  Becker  —  Mr.  President,  I  desire  to  be  excused  from  voting, 
for  the  reason  that  I  find  upon  the  floor  of  this  Convention  so  many 
men  whom  I  love  and  respect  so  ardently  embracing  the  cause  of 
woman  suffrage  that  I  should,  in  justice  to  my  own  views,  briefly 
state  my  reasons  for  voting  against  woman  suffrage  or  against 


542  REVISED  RECORD.  [Wednesday, 

submitting  this  question  to  the  people  in  the  manner  provided  by 
this  amendment.  I  believe  that  the  right  to  vote  is  merely  a 
privilege,  but  when  conferred,  it  becomes  a  duty.  I  believe  that 
with  the  duty  of  voting  comes  the  duty  of  holding  office.  As  a 
lawyer  I  read  in  the  decisions  of  the  common  law  that  a  failure  or 
declination  or  refusal  to  hold  office,  when  elected  by  the  people,  is  a 
crime  for  which  men  have  been  punished.  I  believe  that  if  a  woman 
gains  the  right  to  vote  she  will  be  required  to  perform  the  duty  of 
holding  office  and  being  a  candidate  for  office,  and  I  cannot  believe 
that,  with  that  duty,  it  will  be  possible  to  preserve  the  unity  and  the 
harmony  of  the  family.  For  that  reason  I  am  opposed  to  changing 
the  law  now  existing  on  this  subject.  I  am  opposed  to  this  amend- 
ment as  a  lawyer,  for  the  reason  that  it  is  in  direct  conflict  with  the 
provisions  of  our  organic  law.  Under  the  Constitution  of  the  State, 
which  we  swore  here  to  preserve  and  defend,  the  provision  is  that 
this  Convention  is  elected  to  revise  and  amend  the  Constitution  of 
the  State.  When  we  say  that  we  decline  to  do  that,  and  submit  a 
theoretical,  or  it  may  be  a  practical,  question  to  the  voters  for  their 
determination,  without  pronouncing  our  judgment  upon  it,  we 
violate  that  oath.  For  these  reasons,  Mr.  President,  I  withdraw  my 
request  to  be  excused  from  voting,  and  vote  aye. 

.  Mr.  Cassidy  —  Mr.  President,  I  desire  to  be  excused  from  voting, 
and  will  state  my  reasons.  Unlike  the  gentleman  from  Oneida 
(Mr.  Cookinham),  who  addressed  this  Convention  last  evening,  I 
do  not  speak  for  the  entire  State.  I  speak  for  myself  and  the  small 
division  of  this  State  which  I  represent,  which  is  about  one-six- 
teenth part  of  this  State,  and  in  what  I  shall  say  I  shall  differ  from 
the  gentleman  who  spoke  for  the  whole  State  in  this,  that  I  shall 
strive  to  tell  the  truth.  I  shall  not  stand  here,  before  a  Convention 
which  knows  to  the  contrary,  and  assert  that  I  was  in  favor  of  this 
proposition,  but  by  reason  of  hearing  the  arguments  of  the  ladies 
here  I  had  been  turned  against  it.  I  heard  the  gentleman  assert 
before  any  arguments  were  ever  made  in  this  Convention  that  he  was 
against  this  proposition  from  first  to  last,  and  he  never  would  con- 
sent to  allow  the  women  of  this  State  to  vote. 

I  am  opposed  to  agreeing  with  the  report  of  this  committee, 
because  I  am  moved  by  the  remarks  which  were  made  hv  Mr. 
Lauterbach  when  he  spoke  for  the  industrial  classes  of  this  State; 
and  I  find,  Mr.  President,  that  others  have  spoken  for  the  industrial 
classes  of  this  State.  I  have  heard  it  asserted  upon  the  floor  of 
this  chamber  and  outside  that  the  President  of  this  Convention 
was  not  in  sympathy  with  woman  suffrage,  and  I  stand  here  to-night 
to  repudiate  that  charge,  and  to  assert  that  the  statement  is  false 


August  15.]  CONSTITUTIONAL  CONVENTION.  543 

from  beginning  to  end,  for  no  longer  ago  than  last  February  I 
have  his  remarks  before  an  association  of  the  Woman's  Working 
Society  of  the  city  of  New  York  in  which  the  New  York  Sun  quotes 
him  as  follows :  "  There  is  no  more  logical  reason  why  a  woman 
should  receive  only  half  a  man's  wages  for  work  done  as  well  as 
any  man  could  do  it  than  there  is  why  she  should  not  be  allowed  to 
vote.  (Applause.)  Although  woman  in  the  bright  realms  of  art 
and  literature  has  largely  swept  away  the  unfair  discriminations  of 
manual  labor,  the  old  and  unjust  oppression  of  sex  still  remains." 

The  President —  Mr.  Cassidy,  your  time  has  expired. 

Mr.  Cassidy  —  Mr.  President,  I  want  to  say  just  one  word. 

The  President  —  Your  time  has  expired. 

Mr.  Cassidy  —  Mr.  President,  I  have  not  occupied  five  minutes 
under  the  rule. 

The  President  —  The  rule  is  three  minutes. 

Mr.  Cassidy  —  Just  one  word,  Mr.  President;  I  want  to  say  — 

Voices  —  Vote,  vote. 

The  President  —  The  rule  is  three  minutes,  and  Mr.  Cassidy  will 
take  his  seat. 

Mr.  Cassidy  —  I  vote  no.     (Applause.) 

Mr.  H.  A.  Clark  —  Mr.  President,  I  ask  to  be  excused  from 
voting  and  will  briefly  state  my  reasons.  The  question  arises  on 
agreeing  or  disagreeing  with  the  adverse  report  of  the  Committee 
on  Suffrage.  I  have  the  greatest  respect  and  admiration  for  intelli- 
gent and  noble  women,  and  while  I  do  not  think  it  wise  for  them  to 
vote  and  assume  the  obligations  which  go  with  the  ballot,  still,  if  I 
believed  that  a  majority  of  them  desired  to  vote,  and  assume  all  the 
obligations  and  responsibilities  which  accompany  the  right  of 
suffrage,  I  would  yield  to  their  request  and  vote  to  strike  the  word 
"  male  "  out  of  the  Constitution. 

But,  Mr.  President,  I  do  not  believe  that  a  majority  of  the  women 
desire  to  exercise  this  right,  and  I  am  well  satisfied  that  in  the 
locality  from  which  I  come  a  large  majority  of  both  sexes  are 
strongly  opposed  to  the  proposition.  It  is  proposed  by  an  amend- 
ment, now  before  this  Convention,  to  require  each  person  entitled  to 
a  vote  to  exercise  that  right.  If  that  amendment  should  be  adopted 
and  the  right  of  suffrage  should  be  extended  as  is  proposed,  then 
we  have  imposed  upon  the  women  of  our  State  this  burden  and 
responsibility  without  consulting  them  upon  the  subject. 

.My  wife  and  sister  insist  that  this  right  is  not  desired  by  them. 
I  have  consulted  many  of  the  intelligent  ladies  in  the  community 


544  REVISED   RECORD.  [Wednesday, 

where  I  live,  and  all  have  insisted  to  me  that  they  do  not  desire  this 
right  and  do  not  wish  to  assume  the  grave  responsibilities  which  the 
privilege  carries  with  it.  A  large  majority  of  the  male  citizens  of 
the  same  locality,  I  am  convinced,  are  opposed  to  this  measure. 

In  the  face  of  these  facts  I  am  opposed  to  drafting  the  women  into 
the  public  service.  I  am  opposed  to  having  the  male  citizens  decide 
that  the  female  citizens  must  enter  upon  public  and  political  careers. 
If  the  question  was  left  to  the  woman  to  determine,  I  am  satisfied 
in  my  own  mind  that  the  right  of  suffrage  would  remain  as  it  is  now. 
The  unit  in  this  State  is  not  and  should  not  be  the  individual,  but 
the  unit  is  the  family.  The  husband  and  wife  are  one.  He  is  bound 
for  her  support  and  that  of  their  children.  He  is  responsible  to  a 
large  degree  for  the  acts  of  all.  He  should  be  the  head  of  the 
family.  The  proposition  of  woman  suffragists  is  to  create  two  heads 
to  the  family,  to  destroy  the  unity,  and  place  in  its  stead  that  present 
popular  fad  a  bi-partisan  board,  which  will  result  in  either  conferring 
on  each  family  two  votes  where  it  now  has  one,  or  in  case  the  hus- 
band and  wife  do  not  vote  alike,  then  one  will  cancel  the  other  and 
that  family  become  disfranchised.  I  am  in  favor  of  the  greatest 
liberty  in  every  way  for  the  gentler  sex.  I  will  agree  to  grant  any- 
thing which  they  or  a  majority  of  them  ask.  But  until  they  do  ask 
the  right  of  suffrage,  I  do  not  feel  like  thrusting  it  upon  them.  I 
am,  therefore,  compelled  to  agree  with  the  report  and  withdraw  my 
request  to  be  excused  from  voting,  and  vote  aye. 

Mr.  Cochran  —  Mr.  President,  for  the  first  time  since  this  Con- 
vention opened  I  desire  to  avail  myself  of  the  privilege  of  saying  a 
few  words  in  explanation  of  my  vote  on  this  important  question. 
I  would  say,  sir,  that  I  would  not  now  have  availed  myself  of  this 
privilege  if  it  had  not  been  for  the  prominence,  in  this  movement, 
which  was  given  to  my  name  in  the  very  unbecoming  and  undig- 
nified remarks  of  a  delegate  on  the  floor  of  this  Convention  last 
evening.  (Applause.)  To  those  remarks,  Mr.  President  and  gen- 
tlemen, I  do  not  desire  to  make  any  reply,  for  I  deem  them  unworthy 
of  recognition,  and  should  I  deign  to  reply  to  them,  I  would,  sir, 
sink  to  the  same  level  as  I  believe  that  the  maker  of  them  now  has  in 
the  estimation  of  his  associates  in  this  Convention.  I  believe,  sir, 
that  when  this  Convention  is  over,  and  the  gentleman  thinks  over 
his  speech  of  last  evening  in  calm  and  sober  thought,  his  cheeks 
will  assume  a  much  more  ruddy  hue  than  any  powder  could  ever 
paint  the  cheeks  of  any  of  the  ladies  whose  cause  he  may  have 
endeavored  to  advocate,  but  whose  cause,  sir,  I  think  he  debased. 
To  my  constituents,  or  to  those  whom  I  represent  in  this  Conven- 


August  15.]  CONSTITUTIONAL  CONVENTION.  -    .  545 

tion,  I  believe  that  my  vote  needs  no  explanation,  because  when  I 
vote  against  the  extension  of  suffrage  to  women  — 

Mr.  C'assidy  —  Air.  President,  how  about  time? 

The  President  —  Mr.  Cassidy  will  please  take  his  seat.  The  Chair 
will  take  care  of  the  time. 

Mr.  Cochran  —  As  I  was  about  to  say,  when  interrupted  by  the 
gentleman,  in  voting  against  the  extension  of  suffrage  to  women,  I 
believe  I  only  vote  as  is  desired  by  every  resident  of  my  district. 
I  believe  — 

The  President  —  Mr.  Cochran's  time  is  up. 
Mr.  Cochran  —  I  vote  aye,  sir.     (Applause.) 

Mr.  Crosby  —  Mr.  President.  I  desire  to  be  excused  from  voting 
and  will  briefly  state  my  reasons.  It  was  not  my  intention  to  take 
the  time  of  this  Convention  by  making  any  remarks  upon  this  sub- 
ject, but  in  listening  to  the  suggestions  made  by  the  chairman  of  the 
committee  as  reasons  why  this  question  should  not  be  sent  to  the 
Committee  of  the  Whole,  I  am  led  to  explain,  and  to  give  my 
reasons  why  I  should  cast  my  ballot  in  the  negative.  One  principal 
reason  that  was  presented  by  him  to  this  Convention  was  that  the 
Committee  on  Suffrage  is  largely  opposed  to  submitting  the  ques- 
tion to  the  people.  With  due  respect  for  the  committee  and  the 
opinion  of  that  committee  or  any  committee  in  this  Convention,  we 
are  here  charged  with  individual  responsibility,  and  no  report  of  a 
committee  should  influence  a  gentleman  in  his  action  upon  this 
floor.  We  are  told  by  him  that  he  fears  if  it  is  submitted  to  the 
people  it  will  endanger  the  work  of  the  Convention.  Endanger  the 
work  of  the  Convention,  how?  We  have  given  to  the  female  the 
right  to  our  schools  and  our  colleges ;  we  have  opened  up  to  her  the 
avenues  of  business,  and  we  meet  with  her  and  compete  with  her  in 
all  business  undertakings  the  same  as  we  do  with  those  of  the  other 
sex. 

We  have  removed  all  the  restrictions  upon  her  property  rights, 
aye,  Mr.  President,  we  have  removed  all  the  protection  which  the 
common  law  threw  about  her  by  reason  of  making  the  husband 
responsible  for  her  torts,  and  she  stands  before  the  people  of  the 
State  of  New  York  to-day  with  every  right  and  immunity,  with 
every  responsibility,  except  the  right  to  protect  herself  by  casting 
the  ballot,  which  is  the  most  sacred  right  of  a  freeman.  Mr.  Presi- 
dent, can  there  be  any  question  about  the  manner  in  which  she  will 
exercise  that  right,  after  having  listened  to  the  argument,  to  the 
presentation  of  the  subject  to  this  Convention  by  the  ladies  who 
35 


546  REVISED   RECORD.  [Wednesday, 

have  addressed  us?  Is  it  not  proper  that  the  question  should  be 
submitted  to  the  people  in  the  manner  proposed,  free  from  every 
political  question,  free  from  the  question  of  judiciary,  the  organiza- 
tion of  the  Legislature,  the  canals  and  all  other  questions.  They 
are  satisfied  with  the  proposition  that  it  shall  be  voted  upon 
separately  by  the  people;  and  when  we  consider  their  overwhelming 
petitions,  millions  of  property,  represented  by  them  and  the  extent 
of  their  rights  and  responsibilities  under  the  statutes  and  then  insist 
that  it  is  not  safe  to  send  the  great  question  to  the  people,  we  make  a 
serious  mistake.  I  withdraw  my  request  to  be  excused  from  voting 
and  vote  no. 

Mr.  Dean  —  Mr.  President,  I  ask  to  be  excused  from  voting,  and 
will  briefly  state  my  reasons.  The  State  has  a  right  to  protect  itself. 
It  has  a  right  to  command  the  services,  not  alone  of  its  men,  but  of 
its  women,  when  society  is  in  danger.  The  same  right  that  allows 
us  to  draft  men  into  the  military  service  of  the  State,  justifies  us 
in  imposing  the  duty  of  the  ballot  upon  any  part  of  the  citizenship 
whenever  such  action  is  necessary  for  the  preservation  of  the  welfare 
of  society.  Our  public  school  system  is  based  upon  the  theory 
that  the  safety  of  the  State  demands  the  education  of  those  who  are 
to  discharge  its  functions.  These  schools  have  been  thrown  open 
to  women.  The  census  reports  show  that  only  six  per  cent  of  the 
women  of  this  State  are  illiterate.  The  usages  of  society  have  estab- 
lished and  insist  upon  a  higher  standard  of  morality  for  women  than 
for  men.  The  State  to-day  is  in  need  of  the  infusion  of  this  new 
life  current  of  intelligence  and  virtue  into  the  body  politic.  There- 
fore, the  question  whether  this  or  that  woman  wants  to  vote  or  not, 
is  of  no  consequence.  The  State  has  reached  a  point  where  it 
demands  the  services  of  the  women  whom  it  has  been  educating,  and 
we  have  no  right  to  interpose  our  personal  protest.  It  is  our  duty 
to  submit  this  question  to  the  people,  the  final  arbiters  of  the 
government.  I,  therefore,  withdraw  my  request  to  be  excused  from 
voting,  and  vote  no. 

Mr.  Dickey  —  Mr.  President,  I  ask  to  be  excused  from  voting 
and  will  briefly  state  my  reasons.  My  vote  on  this  subject  is  a 
somewhat  selfish  one,  as  I  am  more  fortunate  than  many  in  the 
fact  that  I  have  a  wife  and  three  daughters.  Just  think  what  a  pull 
I  will  have  when  we  five  go  together  to  the  primaries  and  the 
polls.  (Applause.)  But,  seriously,  I  want  my  wife  and  daughters 
to  have  at  least  as  much  to  say  about  the  government  as  the  tramp 
that  comes  to  my  door.  (Applause.)  When  I  was  a  boy  I  was 
thrilled  with  the  earnest  words  of  Susan  B.  Anthony  in  favor 
of  the  freedom  of  the  slaves.  (Applause.)  The  seeds  she  sowed 


August  15.]  CONSTITUTIONAL  CONVENTION.  547 

have  brought  forth  fruit  to-night.  I  gladly  rise  in  my  place  to 
vote  for  her  freedom  and  the  freedom  of  her  sex.  We  should 
always  remember  that  we  are  the  servants  of  the  people  and  they 
are  our  masters,  and  while  we  have  the  power  of  a  giant  here 
through  the  favor  of  the  people,  we  should  not  arbitrarily  use  that 
power  as  a  giant  and  set  up  our  judgments  as  superior  and  deny 
the  people  their  right  to  vote  on  this  question.  If  they  will  vote 
the  proposition  down,  then  certainly  no  harm  is  done  to  submit 
it,  and  if  they  will  give  a  majority  of  votes  for  it  then  clearly  it  is 
our  duty  to  allow  them  to  do  so.  So  many  good,  true  and  noble 
women  have  asked  us  to  submit  this  question,  I  cannot  find  it  in 
my  heart  to  say  no  to  them.  How  any  one  can  listen  to  all  the 
pleas  made  by  the  ladies  and  oppose  them  is  beyond  my  compre- 
hension. The  opponents,  instead  of  the  bread  the  ladies  are  asking 
for,  have  given  them  honeyed  word,  guff  and  taffy.  As  to  the 
claim  that  women,  if  given  the  right  to  vote,  should  do  their  share 
of  the  fighting,  I  answer,  it  is  a  poor  coot  of  a  man  who  is  not  will- 
ing to  do  his  own  share  of  the  fighting  and  the  women's  too. 
With  dynamite  guns  and  other  modern  machinery  of  war,  wars 
are  now  so  dangerous  and  destructive,  we  are  not  likely  to  have 
any  more.  This  cause  may  not  succeed  to-night,  but  success  is 
near,  very  near  at  hand;  and  it  is  as  sure  to  come  as  that  to-mor- 
row's sun  shall  rise.  Delegates,  get  on  the  car  before  it  runs 
over  you.  (Applause.)  I  am  proud,  very  proud,  to  be  thought 
worthy  of  a  place  in  this  Convention,  but  the  proudest  vote  I  cast 
will  be  the  one  I  now  give  in  favor  of  woman  suffrage,  and  against 
the  report  of  the  committee.  I  vote  no.  (Applause.) 

Mr.  O.  A.  Fuller — Mr.  President,  I  am  sorry  to  say  I  am  paired 
with  my  friend,  I.  Sam  Johnson,  but  I  want  to  say  that  I  am  heartily 
in  accord  with  the  report  of  the  committee.  I  believe  that  the 
amendment 

Mr.  President  —  Mr.  Fuller  is  not  in  order  unless  to  excuse 
his  vote. 

Mr.  Galinger — Mr.  President,  I  ask  to  be  excused  from  voting 
and  will  briefly  state  my  reasons  therefor.  I  have  been  urgently 
requested,  both  orally  and  in  writing,  and  from  both  political 
parties  in  my  district,  to  vote  against  the  pending  question  in  all 
its  phases.  If  the  matter  had  been  left  entirely  to  my  own  dis- 
cretion I  should  have  been  inclined  to  favor  its  submission, 
but  I  cannot  disregard  the  wishes  of  the  constituency  which 
I  have  the  honor  in  part  to  represent.  I  regret  that  some 
of  my  co-delegates  from  the  Third  Senatorial  District,  unmind- 


548  REVISED  RECORD.  [Wednesday, 

ful  of  the  wishes  of  the  constituency,  should  have  succumbed 
to  the  blandishments  of  the  sirens  who  have  been  so  persistently 
haunting  this  chamber  in  behalf  of  woman  suffrage.  I  ask  leave  to 
withdraw  my  request  to  be  excused  from  voting,  and  vote  aye. 

Mr.  Gilbert  —  Mr.  President,  as  to  whether  or  not  the  elective 
franchise  is  a  privilege,  I  simply  put  one  question:  What  would 
you  think  about  it  if  anybody  should  threaten  to  take  it  away 
from  you?     That  is  all  I  want  to  say  about  that.     Now,  another 
thing:  One-half  of  the  citizens  of  the  State  of  New  York  are  abso- 
lutely deprived  of  the  right  of  suffrage,  deprived  of  that  privilege. 
They   are   deprived    of   it   by   the    simple   fact    of    sex.      I    want 
to     say     that     it     seems     to     me     before     you     say     that     the 
people  of  this  State  shall  not  have  an  opportunity   of  deciding 
whether     or    not    this    state    of    things    shall    be    changed,    that 
those  who  favor  a  continuance  of  that  exclusion  ought  to  have 
clear,  sufficient  and  cogent  reasons.     I  venture  to  say  they  have 
not  been  presented  in  the  argument  here.     The  gentleman  from 
New  York  says  to  us,  and  other  gentleman  have  said  the  same  thing, 
that  the  women  are  so  good  and  the  State  so  bad  that  the  former 
ought  not  to  have  anything  to  do  with  the  latter.     That  is  about  the 
logic  of  it.     Now,  if  there  is  anything  that  this  State  needs  it  is 
good  voting  citizens.     One  gentleman  tells  us  that  politics  is  war- 
fare.    One  would  think  to  hear  his  impassioned  appeal  that  politics 
was  a  blood  and  thunder  affair,  and  that  what  you  wanted  was  to 
get  Corbett  here  and  Jackson  here  and  all  .the  great  pugilists  here, 
because  it  is  a  tremendous  hand-to-hand  fight  and  women  are  not 
qualified  for  it.     They  are  intelligent,  they  are  virtuous,  and  they 
are  conscientious;  they  are  interested  in  everything  that  pertains  to 
the  welfare  of  the  State,  but  they  cannot  engage  in  the  great  blood 
and  thunder  conflict,  and,  therefore,  they  shall  not  vote.     That  is 
about  what  there  is  to  it.     I  want  to  say  this  thing  to  you,  Mr.  Presi- 
dent and  gentlemen  of  this  Convention,  that  unity  is  one  thing  and 
uniformity  is  another.     I  believe  that  in  the  very  fact  that  woman 
differs  from  man  we  shall  find  the  complete  unity  in  political  as  we 
do  in  domestic  life.     The  very  fact  that  she  is  different  from  us  leads 
her  to  look  at  public  virtue  from  a  different  standpoint  from  what 
we  do,  and  to  see  things  that  we  would  not  see,  and  to  determine 
things  that  we  otherwise  should  not  determine.     I  believe  that  we 
should  be  complete  in  our  civic  life. 

The  President  —  The  gentleman's  time  has  expired. 

Mr.  Gilbert  —  I  withdraw  my  request  to  be  excused  from  voting, 
and  note  no. 


August  15.]  CONSTITUTIONAL  CONVENTION.  549 

Mr.  Rolls  —  Mr.  President,  I  ask  to  be  excused  from  voting  and 
will  briefly  state  my  reasons.  I  regret  exceedingly  to  differ  most 
radically  with  some  of  the  members  of  this  Convention,  for  whose 
judgment  I  generally  have  the  very  highest  possible  regard.  But  I 
wish  at  this  time  for  myself  to  repudiate  most  earnestly  the  idea 
which  my  distinguished  and  honorable  friend  from  New  York  (Mr. 
Lauterbach)  seems  to  have,  that  this  question  will  be  decided  by  this 
Convention  mainly  on  grounds  of  expediency.  After  my  election 
to  this  body,  and  believing  that  this  question  would  come  up,  I  took 
pains  carefully  to  study  most  of  the  so-called  arguments  in  favor  of 
woman  suffrage,  from  the  time  of  Ralph  Waldo  Emerson  and  John 
Stuart  Mill  down  to  the  present.  I  found  much  edifying  rhetoric 
and  most  attractive  eloquence,  but,  in  my  opinion,  ail  these  efforts 
contain  not  one  argument  worthy  of  the  careful  attention  of  a 
serious  man.  My  conclusion  is  that  woman  suffrage  is  wrong  in 
principle,  and  that,  therefore,  it  is  necessarily  inexpedient.  I  think 
it  is  wrong,  perilous  and  pernicious  in  every  respect,  a  step  backward 
to  barbarism  and  to  anarchy;  and  for  that  reason  I  withdraw  my 
request  to  be  excused  from  voting,  and  vote  aye. 

Mr.  Hottenroth  —  Mr.  President,  I  ask  to  be  excused  from  voting 
and  will  endeavor  to  explain  my  vote  and  briefly  give  my  reasons. 
Next  fall,  in  the  districts  which  I  have  the  honor  to  represent,  we 
will  have  submitted  to  us  the  question  of  rapid  transit  for  New  York 
city,  the  question  of  the  greater  New  York,  and,  possibly,  and  I 
hope,  a  Constitution  proposed  by  this  Convention.  Now,  it  is  pro- 
posed to  tack  on  to  this  an  additional  question,  that  of  woman 
suffrage.  I  am  opposed  to  universal  suffrage,  and  I  believe  the 
people  whom  I  have  the  honor  to  represent  here  are  by  a  large 
majority  opposed  to  it.  I,  therefore,  feel  that  it  will  be  impossible 
to  get  the  sentiment  of  the  people  in  connection  with  this  question, 
truly  and  fairly,  in  the  conditions  that  will  prevail  next  fall.  I  feel, 
therefore,  that  it  would  be  dangerous  to  submit  it.  I  think,  if  it  is 
advisable  to  submit  it  at  some  other  time,  as  is  suggested  by  this 
proposed  amendment,  it  may  be  done,  and  possibly  will  be  done,  if 
the  emergency  exists,  by  the  Legislature  proposing  an  amendment 
under  the  other  provisions  of  the  Constitution.  I,  therefore,  ask 
leave  to  withdraw  my  request  to  be  excused  from  voting,  and  vote 
aye. 

Mr.  Lauterbach  —  Mr.  President,  I  ask  to  be  excused  from 
voting,  and  will  briefly  state  my  reasons.  Women  are  a  part  of  the 
State.  The  franchise  benefits  those  who  enjoy  it.  It  is  a  privilege 
the  availing  of  which  is  always  beneficial.  What  would  avail  to 
benefit  man  in  its  exercise  would  benefit  woman  to  the  same  extent 


550  REVISED   RECORD.  [Wednesday, 

That  is  an  answer  to  the  suggestion  as  to  the  benefit  to  accrue  to 
women.  As  to  the  benefit  to  accrue  to  the  State  —  if  woman  in  her 
present  condition,  the  home-maker,  the  maker  of  an  improved  con- 
dition of  the  community,  exercises  her  legitimate  functions,  the 
State  must  necessarily  be  benefited.  The  State  can  only  be  bene- 
fited by  the  addition  of  her  keen,  intuitive  perceptions,  of  her  greater 
honesty,  of  her  greater  carefulness  in  details  and  the  greater  quali- 
fications which  the  opponents  of  woman  suffrage  have  accorded  to 
women  so  fully  and  thoroughly.  I  do  not  speak  of  the  women  of 
the  classes  who  have  been  represented  by  those  on  the  floor,  like  my 
colleague  from  New  York,  who  are  amply  protected  by  their  hus- 
bands or  fathers  or  others  upon  whom  they  are  dependent;  but  I 
speak  of  the  great  independent  laboring  classes  of  New  York,  and 
for  those  women  who  have  no  husbands  and  no  fathers  and  no  one 
upon  whom  to  rely,  nothing  upon  which  to  rely  except  on  the 
franchise,  which  would  give  them  the  only  weapon  of  offense  and 
defense  that  we  possess  in  this  Empire  State.  Therefore,  it  is  for 
them  that  I  plead,  and  for  them  I  have  pleaded,  and  it  is  no  answer 
to  say  that  because  we  can  protect  our  wives  and  our  children  that 
these  people,  who  have  not  been  fortunate  enough  to  have  such 
defenders,  shall  be  left  entirely  without  protection.  And  because  I 
believe  that,  and  because  all  the  logic  of  this  question  is  on  one  side, 
and  all  the  justice  of  the  question  is  on  the  same  side,  and  because 
only  might  and  power  rest  upon  the  other,  and  because  I  look  with 
horror  upon  the  exercise  of  that  might  and  power  against  logic  and 
justice  and  right,  I  withdraw  my  request  to  be  excused  from  voting, 
and  vote  no. 

Mr.  Lyon  —  Mr.  President,  it  is  to  my  mind  sufficient  of  itself  to 
determine  how  I  ought  to  vote  upon  the  proposed  amendment,  that, 
in  my  opinion,  the  very  great  majority,  I  might  say  the  overwhelm- 
ing majority,  of  women  do  not  want  the  right  of  suffrage. 

Since  the  opening  of  this  Convention  in  May,  I  have  endeavored 
to  ascertain  the  sentiment  of  women  regarding  this  matter,  and  have 
talked  with  very  many  of  them  upon  the  subject,  and  particularly 
with  women  residing  in  the  city  and  county  from  which  I  come, 
representing  the  various  stations  of  life,  and  I  have  found  the  great 
majority  opposed  to  the  proposition  and  many  women  most  bitterly 
opposed  to  it. 

If  I  am  right  in  my  positive  belief  that  the  majority  of  women  do 
not  want  the  right  of.  suffrage,  I  am  right  in  the  statement  that  the 
majority  of  women  would  not  exercise  that  right  if  granted,  except 
upon  exceptional  occasions. 


August  15.]  CONSTITUTIONAL  CONVENTION.  551 

Who  will  contend  that  women  who  do  not  want  the  right  to  vote 
would  vote  if  the  right  were  given  them? 

Who  will  say  that  women  opposed  to  suffrage  would  take  upon 
themselves  the  burdens,  and  perform  the  duties  incident  to  party 
caucuses  and  elections,  and  the  conduct  of  public  affiairs? 

I  am  certain  that  the  women  who  would  not  take  part  in  politics 
would  be  found  much  more  numerously  in  the  great  body  of  intelli- 
gent women  than  in  any  other  class,  and  hence  that  while  the  result 
of  this  extension  of  suffrage  would  be  to  add  to  the  intelligent  vote, 
it  would  add  in  a  much  greater  proportion  to  a  vote  which  our 
government  in  its  too  great  generosity  has  already  extended  by 
limits  many  thousands  too  large  for  the  public  interests. 

I  do  not  want  to  be  understood  as  saying  that  I  believe  women 
generally  have  not  the  ability  requisite  for  the  exercise  of  the  right 
of  suffrage,  for  I  believe  that  the  average  intelligence  of  women  is 
fully  equal  to  that  of  men,  but  what  I  do  say  is  that  with  the  present 
opposition  to  the  measure,  more  of  the  women,  intelligent  and  best 
qualified  to  exercise  the  right  of  suffrage,  would  refuse  to  exercise  it, 
than  women  of  any  other  class. 

I  cannot,  within  the  three  minutes  allowed  each  member  in  which 
to  explain  his  vote,  enter  into  any  of  the  many  arguments  which 
have  been  advanced  upon  this  subject. 

It  is,  perhaps,  proper  to  say  that  I  have  endeavored  to  give  this 
subject  the  careful  consideration  which  its  great  importance 
demands,  and,  with  that  end  in  view,  have  examined  with  care  the 
mass  of  documents  which  have  been  sent  to  me  bearing  upon  this 
subject,  as  well  as  heard  all  the  speeches  delivered  at  public  meet- 
ings of  the  Suffrage  Committee  held  in  this  chamber. 

It  is  also,  perhaps,  proper  to  say  that  I  have  been  able  to  approach 
the  consideration  of  this  subject  with  a  mind  free  from  any  preju- 
dice, and  with  the  purpose  of  determining  for  myself  whether  the 
proposed  extension  of  the  right  of  suffrage  was  in  the  interests  of 
woman  and  for  the  public  good. 

However,  as  I  have  said,  believing  that  the  very  great  majority  of 
women  do  not  want  the  right  of  suffrage  and  that  granted  under 
such  conditions  it  would  prove  to  be  neither  in  the  interest  of 
woman  nor  for  the  public  interest,  I  believe,  Mr.  President,  that  my 
duty  lies  in  voting  to  sustain  the  report  of  the  committee,  I  vote  aye. 

Mr.  Maybee  —  Mr.  President,  I  desire  to  be  excused  from 
voting,  and  will  very  briefly  state  my  reasons.  I  am  glad  to  know 
that  there  are  gentlemen  in  this  Convention  who  are  intellectually 
so  far  the  superiors  of  Ralph  Waldo  Emerson  and  John  Stuart  Mill 
that  they  cannot  find,  in  the  deliberate  utterances  of  those  great 


552  REVISED   RECORD.  [Wednesday, 

thinkers,  anything  worthy  of  their  serious  consideration.  It  is, 
perhaps,  not  surprising  that  other  gentlemen,  who  are  fresh  from 
the  scene  of  the  squabbles  between  Johnny  Milholland  and  the  Com- 
mittee of  Thirty,  should  look  upon  politics  as  a  disgraceful  warfare. 
(Laughter.)  But  it  may  very  well  be,  Mr.  President,  that  if  the 
elective  franchise  is  conferred  upon  women,  politics  will  lose  much 
of  the  character  of  disgraceful  warfare  that  it  is  now  said  to  possess. 
I  withdraw  my  excuse,  and  vote  no. 

Mr.  Moore — Mr.  President,  I  desire  to  be  excused  from  voting 
and  will  briefly  state  my  reasons  if  I  can  within  three  minutes.-  I 
believe  Mr.  President  that  this  is  a  historical  moment.  I  believe 
that  we  here  are  making  history  and  that  we  are  making  that  kind 
of  history  which  will  redound  to  our  advantage  or  our  disadvan- 
tage. In  my  judgment,  Mr.  President,  the  opponents  of  woman 
suffrage  in  this  Convention  have  given  no  valid  reasons  for  refus- 
ing to  submit  it  to  the  people  of  this  State.  The  Esquires  in  the 
English  Parliament  smiled  and  laughed  at  the  monster  petitions 
of  the  Chartists  and  yet  to-day  the  principles  of  the  Chartists  are 
embodied  in  the  British  Constitution.  Mr.  President,  as  a  Repub- 
lican, since  I  have  been  on  this  floor  I  have  longed  for  the  old  spirit 
of  the  old  Republican  party,  that  brave  and  gallant  giant  which, 
in  1860,  sprang  into  the  political  arena  with  the  cries  of  free  speech, 
free  soil  and  free  men.  (Applause.)  I  have  seen,  Mr.  President, 
in  this  Convention,  constantly  a  certain  fear,  fear,  fear.  "  You  must 
not  do  this,  and  you  must  not  do  that,  and  somebody  shaking  in 
his  boots  all  the  time.  (Applause.)  Mr.  President,  I  desire  to  say 
that  I  am  not  afraid  to  vote  for  female  suffrage  in  this  Conven- 
tion." (Applause.)  Mr.  President,  as  I  have  been  accused  of  not 
being  a  Republican  any  longer  because  I  dared  to  stand  there,  I 
say.  I  stand  by  the  side  of  the  New  York  Press,  that  great  Repub- 
lican paper,  the  New  York  Recorder  and  hosts  of  other  lesser 
Republican  papers.  (Applause.)  Mr.  President,  I  ask  to  with- 
draw my  request  to  be  excused  from  voting  and  vote  no,  and  I 
should  vote  a  thousand  votes,  if  I  had  them,  against  the  report  of 
this  committee.  (Applause.) 

Mr.  Osborn  —  Mr.  President,  I  desire  to  be  excused  from  voting 
and  wish  to  state  briefly  my  reasons.  On  the  eighth  day  of  last 
last  May,  my  eye  was  caught,  by  that  shield  behind  your 
honored  chair,  in  which  two  women  upheld  the  shield  of  State. 
Looking  at  them  through  these  long  and  somewhat  weary  weeks, 
I  have  been  cheered  when  I  felt  sad,  and  enthused  by  the  remark 
which  they  whispered  in  my  ear  "  Excelsior."  For  these  reasons 
I  have  grown  to  love  them,  Mr.  President.  I  feel  that  the  least 


August  15-]  CONSTITUTIONAL  CONVENTION.  553 

that  I  can  do  for  them  is  to  give  them  a  complimentary  vote.  Mr. 
President,  I  desire  to  withdraw  my  request  to  be  excused  from 
voting  and  vote  no.  (Applause.) 

Mr.  Pashley  —  Mr.  President,  I  ask  to  be  excused  from  voting, 
and  will  briefly  state  by  reasons.  I  am  in  favor  of  giving  the  fran- 
chise to  women,  to  the  same  extent  as  is  exercised  by  men.  I  had 
not  the  good  fortune  to  be  a  member  of  this  body  when  the  propo- 
sition to  strike  out  the  word  "  male  "  from  the  Constitution  was 
acted  upon;  but  had  I  been,  or  were  that  the  question  under  con- 
sideration to-night,  it  would  have  my  unqualified  approval  and 
support. 

Mr.  President,  when  I  first  read  the  proposition  now  before  us, 
it  seemed  to  me  to  be  eminently  proper  and  unobjectionable;  but, 
on  reflection,  I  have  reached  a  different  conclusion,  and  I  feel  con- 
strained to  support  the  report  of  the  committee.  I  do  not  favor  the 
submission  of  propositions,  separate  and  apart  from  the  Constitu- 
tion that  we  propose  to  submit.  There  are  before  this  Convention, 
numerous  proposed  amendments,  many  of  which  are  sure  to  be 
reported  adversely.  If,  then,  we  allowed  this  measure,  now  under 
consideration,  to  be  submitted  separately,  we  shall  establish  a  prece- 
dent and  we  shall  be  compelled  in  all  fairness  to  allow  the  same 
privilege  to  the  advocates  of  any  measure  reported  adversely.  We 
cannot  grant  to  one  portion  of  the  community  privileges  that  we 
deny  to  another.  Upon  this  principle,  I  voted  only  last  week 
against  a  similar  measure  in  relation  to  the  abolition  of  capital 
punishment,  and  I  cannot  now  vote  to  submit  this  question 
separately.  I  now  withdraw  my  request  to  be  excused  from  voting, 
and  vote  aye. 

Mr.  Powell  —  Mr.  President,  I  desire  to  be  excused  from  voting, 
and  will  state  my  reasons,  entirely  uninfluenced,  by  my  own  pre- 
dilections, so  far  as  this  matter  is  concerned.  But  because  600,000 
citizens  of  this  State  have  asked  that  this  question  may  be  submitted 
to  the  people,  because  the  great  laboring  classes  of  this  State,  the 
men  whose  hands  are  hardened  by  honest  toil,  because  this  class,  so 
far  as  we  have  been  able  to  ascertain  their  views,  are  anxious  that 
this  question  should  be  submitted  to  the  people,  because  this  ques- 
tion is  simple  and  concrete  and  not  at  all  complex  in  its  character, 
because  I  believe  my  constituents  are  wiser  than  am  I,  even  though  I 
am  a  member  of  this  august  Convention,  because  I  believe  that  the 
wisdom  of  the  people  of  the  State  of  New  York  is  greater  than  the 
wisdom  of  this  Convention,  or  even  the  Committee  on  Suffrage, 
great  as  is  the  wisdom  of  that  committee,  because  I  have,  as  I  have 
already  declared  on  this  floor,  an  unlimited  confidence  in  the  integ- 


554  REVISED  RECORD.  [Wednesday, 

rity  and  the  intelligence  and  the  honesty  of  the  people  of  this  State, 
because,  sir,  of  these  reasons,  I  am  opposed  to  the  report  of  this 
committee,  and  I  withdraw  my  request  to  be  excused  from  voting, 
and  vote  no.  (Applause.) 

Mr.  Putnam  —  Mr.  President,  I  ask  to  be  excused  from  voting, 
and  will  briefly  state  my  reasons,  or  some  of  my  reasons,  I  had,  per- 
haps, better  say.  Mr.  President,  I  believe  that  the  philosophy  of 
history  teaches,  if  it  teaches  anything,  that  man  was  made  by  his 
Creator  to  rule  the  State,  and  that  woman  was  made  by  her  Creator 
to  rule  the  home.  (Applause.)  Mr.  President,  I  know  that  my 
constituency  are  opposed  to  woman  suffrage  —  the  women  as  well 
as  the  men.  I  feel  that  those  noble  Christian  women  who  rule  our 
homes,  who  wield  their  influence  in  the  charitable  institutions  of  our 
State,  who  instill  patriotism  and  love  in  the  hearts  of  their  sons  and 
husbands  and  brothers,  are  in  the  main  opposed  to  woman  suffrage. 
Mr.  President,  for  these  reasons  and  for  many  others,  I  ask  to  with- 
draw my  request  to  be  excused  from  voting,  and  vote  aye. 
(Applause.) 

Mr.  Smith  —  I  believe  the  right  to  vote  to  be  a  natural  right.  By 
the  laws  of  nature,  woman  is  endowed  with  the  right  of  self-defense, 
in  virtue  of  her  right  to  live,  and  the  right  to  defend  herself  implies 
the  right  to  make  that  defense  as  complete  as  possible,  and  hence 
it  implies  the  right  to  unite  with  the  other  members  of  the  human 
family  for  the  same  purpose,  all  standing  together  on  the  platform  of 
self-defense  for  greater  security;  and  such  joining  and  standing 
together  has  been,  from  the  beginning,  nothing  less  than  the  organi- 
zation of  the  State,  the  establishment  of  civil  government.  It  is, 
therefore,  upon  this  great  platform  of  self-defense,  that  government 
is  founded,  to  defend  and  protect  the  enjoyment  of  human  rights. 
In  these  circumstances,  the  ballot  is  the  only  means  by  which  the 
individual  can  be  admitted  to  participate  in  government.  The 
right  to  vote,  therefore,  is  a  right  springing  from  self-defense,  and 
a  natural  right  that  neither  men  nor  women  should  be  denied 
enjoyment  of,  any  right  conferred  by  the  Creator. 

If  we  refuse  to  recognize  the  rights  of  women  to  equal  suffrage 
with  men,  then  we  should  instruct  the  Committee  on  Bill  of  Rights 
to  report  an  amendment  to  the  preamble  of  the  Constitution  and 
make  it  conform  to  the  truth;  and  as  so  amended,  it  would  read  as 
follows : 

PREAMBLE. 

We,  one-half  of  the  people  of  the  State  of  Xew  York,  grateful  to 
Almighty  God  for  the  subjection  of  the  other  half,  and  for  the  bless- 


August  15.]  CONSTITUTIONAL  CONVENTION.  555 

ings  of  freedom  for  ourselves,  in  order  to  continue  our  supremacy, 
do  establish  this  Constitution.     (Applause.) 

Mr.  W.  H.  Steele  —  Mr.  President,  I  desire  to  be  excused  from 
voting,  and  I  will  briefly  state  one  reason.  I  have  heard  very  much 
in  this  Convention  about  the  members  of  the  Convention  being 
constantly  button-holed  by  the  ladies  who  are  in  favor  of  woman 
suffrage.  I  have  seen  nothing  of  it.  I  have  simply  heard  it  stated 
upon  this  floor  and  elsewhere,  though  I  dislike  to  believe  that  it  has 
prevailed  to  so  great  an  extent  as  some  members  of  the  Convention 
would  have  us  believe ;  but,  sir,  I  am  in  favor  of  this  adverse  report ; 
as  I  was  in  our  Legislature  thirteen,  fourteen  and  fifteen  years  ago, 
when  the  ladies  did  approach  me  in  this  chamber,  and  also  a  great 
many  other  members,  upon  this  question.  I  have  one  particular 
reason,  and  that  is  I  believe  that  my  constituents  are  not  generally 
in  favor  of  it.  I  have  been  approached  by  but  two  ladies  in  the  city 
of  Oswego,  asking  me  to  support  this  question.  After  they  found 
that  I  was  elected  to  this  Convention  (they  said  nothing  about  it 
before),  they  desired  me  to  pledge  them  that  I  would  support  the 
question  allowing  the  women  of  the  State  of  New  York  to  vote. 
I  believe,  sir,  that  I  was  so  much  impressed  by  their  pleas  that  I, 
inadvertently,  said  at  one  time  that  I  thought  I  would  say  nothing 
either  in  favor  of  or  against  it.  I  have  kept  my  promise,  however 
much  I  may  have  desired  to  speak  upon  the  subject.  I  have  said 
nothing  either  in  favor  of  or  against  it.  But,  sir,  there  is  a  strong 
opposition  prevailing  against  it  along  the  shores  of  Lake  Ontario 
and  down  the  St.  Lawrence;  although  I  am  not  in  full  accord  with 
it.  A  current  story  fairly  expresses  the  sentiment  of  many  of  the 
male  population  in  that  section.  Near  the  lake  lives  the  honest  wife 
of  an  honest  fisherman,  with  seven  noble  boys,  but  no  girls.  This 
estimable  woman  had  devoted  so  much  of  her  time  to  raising  voters 
that  she  had  found  no  leisure  for  considering  her  own  individual 
right  of  suffrage.  A  lady  neighbor  called  one  day,  and  said  to  her : 
"  Mrs.  Prolific  " —  we  will  call  her  that  because  that  was  not  her 
name  — "  what  a  pity  it  is  that  one  of  your  fine  boys  is  not  a  girl." 
Down  at  the  lower  end  of  the  table,  the  small  boy,  the  irrepressible 
small  boy,  spoke  up : '  I'd  like  to  know  who'd  a  bin  'er,  Sam  wouldn't 
a  bin  'er,  Bob  wouldn't  a  bin  'er,  Bill  wouldn't  a  bin  'er,  Jack 
wouldn't  a  bin  'er,  and  you  can  bet-cher  bottom  dollar  I  wouldn't  a 
bin  'er.  She  wouldn't  have  no  show  in  this  fambly." 

The  President  —  The  gentleman's  time  has  expired. 

Mr.  W.  H.  Steele  —  I  withdraw  my  request  to  be  excused  from 
voting,  and  vote  aye. 


556  REVISED  RECORD.  [Wednesday, 

Mr.  Storm  —  Mr.  President,  I  desire  to  be  excused  from  voting 
and  will  briefly  state  my  reasons,  and  will  try  to  say  something  new, 
if  it  is  possible.  It  has  been  my  lot  through  life  to  come  into  con- 
tact largely  with  working  women,  and  I  have  had  ample  opportunity 
to  ascertain  and  learn  their  needs.  I  had  the  pleasure  to-day  of 
being  presented  to  a  lady  upon  this  floor,  whom  I  knew  by  reputa- 
tation  for  a  long  time,  by  the  name  of  Mrs.  Blake,  and  she  paid  me 
the  compliment,  also,  that  she  had  known  me  for  a  long  time,  owing 
to  a  circumstance  which  occurred  in  a  factory  with  which  I  am  con- 
nected. I  will  briefly  relate  that  incident  because  it  touches  this 
subject  very  closely.  We  had  in  that  factory  a  hundred  men  at 
work.  One  of  those  one  hundred  men  died  in  the  course  of  time 
and  left  a  wife  and  family.  We  learned  that  the  man  had  taught  his 
wife  the  trade  which  he  was  laboring  at,  and,  in  order  to  give  her 
an  opportunity  to  earn  a  livelihood  for  herself  and  family,  we  offered 
her  her  husband's  position.  She  accepted  it  and  we  put  her  in  a 
separate  place,  but,  nevertheless,  those  one  hundred  men  protested 
against  that  woman  as  interfering  or  intruding  upon  their  line  of 
business.  They  waited  upon  us  and  put  the  matter  in  such  a  shape 
that  either  that  woman  would  have  to  leave  or  that  they  would  leave, 
would  strike.  We  tried  to  reason  with  them,  but  it  was  impossible. 
The  woman  must  leave  or  they  would  leave,  and  we  finally  allowed 
the  one  hundred  men  to  leave.  (Applause.) 

And  thus  we  made  it  possible  for  one  woman  to  drive  away  one 
hundred  men,  and  when  they  did  leave  we  told  them  that  no  one 
of  them  should  ever  come  back  again,  and  they  never  did.  Now, 
Mr.  President,  notwithstanding  that  and  the  fact  that  I  have  stated 
that  I  know  the  needs  of  the  women  and  that  my  feelings  toward 
the  sex  have  not  changed  from  that  day  to  this,  I  am  constrained 
to  support  the  report  of  the  committee,  and,  therefore,  withdraw 
my  request  to  be  excused  from  voting,  and  vote  aye.  (Applause.) 

Mr.  Tibbetts  —  Mr.  President,  actuated  by  a  desire  to  do  every- 
thing which  will  elevate  the  elective  franchise,  I  came  here  believ- 
ing, from  my  own  personal  knowledge,  that  the  ladies  of  my  locality 
were  bright  enough,  intelligent  enough,  able  enough,  to  cast  a 
vote.  I  came  here  thinking  that  perhaps  it  was  the  proper  thing 
to  allow  them  to  do  it.  After  I  got  here  I  heard  grave  and  reverend 
delegates  in  this  Convention  say  that  from  personal  knowledge 
there  were  ladies  who  were  not  proper  persons  to  cast  a  ballot, 
who  should  not  cast  a  ballot ;  they  were  so  bad,  so  low,  that  it  would 
degrade  the  ballot.  I  have,  Mr.  President,  the  knowledge  that  in 
my  own  locality  there  were  proper  persons  to  be  entrusted  with 
the  ballot.  I  have  equal  information  from  the  other  side  that  there 


August  15.]  CONSTITUTIONAL  CONVENTION.  557 

are  those  among  these  women  who  are  not  proper  to  be  entrusted 
with  the  ballot.  I  am  in  the  position  of  the  defendant  who  answers 
that  he  has  not  sufficient  information  or  knowledge  to  form  a  belief. 
Therefore,  with  the  idea  that  in  the  Committee  of  the  Whole  we 
may  be  enlightened,  and  that  this  matter  may  have  such  a  light 
thrown  upon  it  that  I  will  not  only  have  knowledge  and  informa- 
tion, but  belief,  I  shall  cast  my  vote  to  bring  it  there.  I  vote  no. 

Mr.  Titus —  Mr.  President,  I  ask  to  be  excused  from  voting,  and 
will  take  advantage  of  the  opportunity  to  state  my  reasons.  I  have 
supported  this  matter  for  the  reason  that  I  believe  in  the  brother- 
hood of  men,  the  sisterhood  of  women  and  the  fatherhood  of  God. 
The  members  of  this  Convention  who  have  voted  aye  on  this  occa- 
sion, it  is  my  earnest  wish  and  prayer  that  those  who  are  fortunate 
enough  to  yet  have  mothers,  when  they  look  into  their  eyes  and 
into  the  eyes  of  their  wives  and  children,  may  reconcile  their  con- 
sciences with  what  they  have  done  to-night.  And,  further,  that 
when  they  lay  their  heads  on  their  pillows  to-night  that  their  con- 
science will  tingle  with  that  remorse,  which,  I  think,  their  action 
justly  entitles.  Mr.  President,  I  withdraw  my  request  to  be  excused 
from  voting,  and  vote  no. 

Mr.  C.  S.  Truax  —  Mr.  President.  I  desire  to  be  excused  from 
voting  for  the  following  reasons:  I  have  paired  with  Mr.  McClure, 
who  was  obliged  to  leave  before  his  name  was  reached,  and  who. 
if  present,  would  have  voted  aye. 

Mr.  Yeclder  —  Mr.  President,  I  ask  to  be  excused  from  voting. 
I  shall  not  discuss  the  question  whether  the  hand  that  rocks  the 
cradle  should  have  the  right  to  cast  the  ballot  that  defends  that 
cradle;  whether  the  spirit  of  chivalry  has  deserted  the  bosoms  of 
the  men  of  Xew  York,  and  that  they  declare  that  the  right  of  a 
woman  to  vote  depends  now,  and  forever  will  depend,  upon  her 
physical  capacity  or  power  as  a  warrior  to  hush  the  thunders  and 
chain  the  lightnings  of  political  wrath,  except  to  say,  that  such 
sentiments  are  a  slander  upon  the  valor  and  manhood  of  the  people 
of  this  State.  (Applause.) 

If  war  should  be  declared  to-morrow,  or  at  any  future  time,  a 
million  fighting  men,  sons  of  New  York,  would  swear  by  the  altar, 
and  on  the  shields  of  their  fathers,  and  keep  the  oath  good;  not 
only  that  our  women  should  do  no  fighting,  but  that  no  sword 
would  sleep  in  its  scabbard  so  long  as  there  was  a  woman  to  defend. 
(Applause.) 

I  shall  not  debate  whether  or  not  it  is  right  that  man  should  con- 
tinue to  chain  woman  to  his  political  chariot  wheels  and  drag  her, 


558  REVISED  RECORD.  [Wednesday, 

as  a  lifeless  unpolitical  entity  around  the  State,  as  Achilles  did  the 
body  of  Hector  around  the  walls  of  Troy,  or  whether  or  not  it  is 
ordained  of  God  that  sex  and  sex  alone  shall  determine  the  political 
dust  out  of  which  voters  shall  be  made. 

I  shall  not  at  this  time  enter  any  contention  as  to  whether  the 
wife  who  has  been  chosen  by  her  husband  to  be  the  mother  of  his 
children,  and  who  may  go  with  him  into  all  other  places  where  he 
by  right  may  go,  and  share  with  him  all  other  rights  and  joys, 
but  shall  not  go  with  him  into  the  American  voting  booth  —  that 
holy  of  political  holies  of  American  citizenship,  the  fortress  of  liberty 
and  law,  that  sanctuary  of  the  best  hopes  and  highest  aspiration 
of  civilization  on  the  western  continent,  because  those  mighty 
questions  are  not  properly  before  us  for  decision  at  this  hour. 
These  questions  are  for  another  forum,  the  forum  of  the  people  — 
the  ultimate  judge. 

The  question  now  is  not  whether  the  women  of  the  State  shall 
have  the  right  to  exercise  the  elective  franchise,  but  the  supreme 
and  only  question  before  us  is  whether  we,  the  delegates  to  this 
Convention,  shall,  by  our  votes,  permit  the  constitutional  voters 
of  the  State  to  vote  upon  the  question  whether  they  will  permit 
others  to  enjoy  the  same  suffrage  rights  that  they,  the  voters, 
now  enjoy. 

Many,  very  many  thousands  of  the  voters  of  the  State  have 
exercised  the  sacred  inalienable  right  of  petition,  and  have  prayed 
this  Convention  to  be  allowed  to  vote  upon  the  question  whether 
or  not  women  might  hereafter  have  the  right  to  vote,  and  we,  the 
servants  of  these  voting  people,  have  no  more  right  to  disfranchise 
them  on  this  question  than  we  would  to  vainly  attempt  to  disfran- 
chise them  absolutely  and  unqualifiedly  as  to  every  other  question. 
The  State  Constitution  is  a  compact  made  by  and  between  the  citi- 
zens of  the  State  to  govern  themselves  in  a  certain  manner.  -This 
State,  therefore,  is  a  government  of  voters  by  the  voters,  and  the 
great  question,  as  I  have  said,  now  before  us,  is  whether  or  not 
these  voters  and  governors  shall  have  the  right  to  enlarge  the  rights 
of  those  who  are  governed  and  to  admit  a  certain  class  of  them 
into  an  equal  partnership  in  governing  the  State.  It  is  a  question 
of  the  highest  privilege  and  governmental  rights,  and,  as  the  people 
do  and  should  rule,  I  withdraw  my  request  to  be  excused  from 
voting,  and  to  vote  this  question  to  the  people  I  vote  no. 
(Applause.) 

Mr.  Woodward  —  Mr.  President.  I  ask  to  be  excusedy  from  vot- 
ing, and  will  briefly  state  my  reasons.  I  have  listened  to  many 
able  speeches  by  men  abler  than  myself,  and  with  more  powerful 


August"  15.]  CONSTITUTIONAL  CONVENTION.  559 

voices  than  I  possess,  who,  with  much  of  wit  and  pathos,  have 
addressed  you  upon  this  question.  Some  of  these  speeches  have 
been  uttered  with  very  much  of  sound  and  fury,  but  with  very  little 
of  argument.  And  they  have  forcibly  reminded  me  of  the  words  of 
a  Latin  classic,  Vox  ct  praeterea  nihil  —  voice  and  nothing  besides  — 
and  I  could  but  think  of  the  poet's  line: 

"  Hard  is  the  heart  whom  charms  cannot  enslave." 
And  also  of  another  line: 

"  In  aught  that  tries  the  heart,  how  few  withstand  the  test." 
One  of  the  gentlemen  who  addressed  you  gave  us  a  good  deal 
of  very  pretty  and  witty  poetry,  uttered  with  so  much  unction  that 
he  reminded  me  of  some  lines  I  had  read  in  a  book  which  was 
written  by  James  B.  Wiggins,  of  Boston;  and  as  they  come  from 
a  city  sometimes  called  the  "  Hub,"  perhaps  I  will  be  pardoned  if 
I  quote  them: 

"  Oh,  a  woman,   bless   her   eyes, 
Is  a  constant  mild  surprise, 

To  a  man; 

She  will  muddle  all  his  wits, 
She  will  break  him  into  bits, 
She  will  get  him  into  fits, 
When  she  can." 

Judging  from  the  wild  earnestness  of  his  delivery,  and  the  fury 
of  his  utterance,  the  poetic  frenzy  to  which  he  was  wrought  up, 
I  should  be  inclined  to  question  whether  women,  in  the  language 
of  Wiggins,  the  great  Boston  poet,  had  not  set  him  into  fits.  Yet 
I  must  sayr  as  you  will  all  say  with  me,  that  I  admired  his  eloquence, 
and  as  I  watched  his  eyes  "  in  a  fine  frenzy  rolling,"  I  said  to  myself 
he  is  a  greater  orator  than  Marc  Antony  is  represented  to  be  in 
Shakespeare.  His  eloquence  was  splendid,  his  poetry  beautiful, 
but  his  arguments  seemed  to  me  to  be  few  and  far  between.  Now. 
I  would  say  with  another  poet: 
"  Yet,  let  us  ponder  boldly, 

'Tis  a  base 
Abandonment  of  reason  to  resign 

Our  right  to  thought,  our  last  and  only  place 
Of  refuge;  this  at  least  shall  still  be  mine." 
I  would  also  say  with  another  poet: 

"  A  thousand  years  scarce  serve  to  form  a  State, 
An  hour  may  lay  it  in  the  dust,  and  when 
Can  man  its  shattered  splendors  renovate, 
Recall  its  virtues  back  and  vanquish  time  and  fate." 


560  REVISED  RECORD.  [Wednesday, 

Again,  this  is  a  representative  republican  government.  It  is  not 
a  democracy.  In  a  democracy  all  the  people  are  to  be  called 
together  to  make  the  laws  and  to  decide  upon  the  questions  that 
concern  the  welfare  of  the  State.  Not  so  in  a  representative  gov- 
ernment. Under  such  a  government  a  few  persons  are  chosen  for 
their  worth,  integrity  and  ability,  to  represent  the  people  and  make 
laws  for  the  State.  Those  representatives  represent  the  men  of 
the  State,  whether  they  are  voters  or  not,  whether  they  are  natural- 
ized citizens  or  unnaturalized.  They  represent  the  women  and 
children  of  the  State.  They  represent  not  only  their  own  mothers, 
wives  and  daughters,  but  all  the  mothers,  wives  and  daughters  of 
the  State.  If  they  do  not  do  this,  they  are  recreant  to  their  trust, 
and  their  names  and  memory  should  be  execrated. 

I  would  like,  for  myself,  to  confer  the  right  of  suffrage  upon  the 
women  of  this  State,  if  I  thought  it  would  benefit  them  or  be  any 
real  advantage  to  the  State.  But,  believing  that  it  would  be  dis- 
astrous, both  to  the  State  and  our  wives  and  daughters,  I  am  not 
in  favor  of  this  new  ism.  Were  I  in  favor  of  it,  I  should  be  in  favor 
of  striking  the  word  "  male  "  out  of  'the  Constitution,  rather  than 
of  sending  it  to  the  people  to  be  voted  upon.  If  it  is  right  in  this 
State,  it  is  right  in  all  of  the  States,  and  the  ignorant  black  women 
of  the  South  should  be  at  once  enfranchised.  But  I  have  never  seen 
or  heard  a  logical  argument  in  its  favor.  The  standing  argument 
put  forth  and  iterated  and  reiterated  in  almost  every  printed  docu- 
ment showered  upon  the  delegates  to  this  Convention  and  of  every 
speech  made  in  favor  of  female  suffrage  upon  this  floor  is  "  that 
the  women  of  the  State  are  not  represented." 

This  is  a  fallacy,  and  the  arguments  based  upon  it  are  fallacious, 
the  reasoning  sophistical.  The  right  to  the  ballot  is  derived  from 
the  right  to  self-defense.  Grant  that  a  man  has  but  a  single  right, 
the  right  to  life,  and  following  as  a  sequence  from  that  right  is  the 
right  to  defend  that  right.  Men  are  allowed  to  participate  •  in 
government  by  the  use  of  the  ballot  in  order  that  they  may  defend 
their  rights  and  the  rights  of  their  wives  and  children.  Men  are 
in  duty  bound  to  defend  their  wives  and  children,  their  sisters  and 
mothers.  They  are  to  do  this  in  the  Legislature,  at  the  polls,  as 
well  as  upon  the  battlefield.  Nature  has  placed  this  duty  upon  the 
male  sex.  What  man  that  has  any  manhood  about  him  will  prove 
recreant  to  this  duty? 

Whoever  is  chosen  to  office,  or  to  make  laws,  or  to  execute  them, 
is  chosen,  not  to  represent  the  male  sex  alone,  but  all  the  women 
and  children  in  his  locality.  He  is  not  chosen  to  represent  his 
own  wife  and  children  merely,  but  all  there  may  be  in  his  locality 


August  is.J  CONSTITUTIONAL  CONVENTION.  561 

he  represents.  This  he  does.  It,  therefore,  follows  that  the 
women  are  represented.  This  is  a  representative  government.  All 
classes  are  represented.  Let  the  Legislature  make  any  attack  upon 
your  wife  and  daughter,  or  mother  and  sister,  or  upon  mine,  and 
how  quick  you  and  I  would  fly  to  the  rescue.  A  man  might  tread 
upon  my  toes,  perhaps,  with  impunity,  but  let  me  catch  him  pur- 
posely treading  upon  my  wife's  toes  or  any  other  of  my  female 
relatives,  and  there  would  be  a  war  at  once.  I  should  fly  to  the 
rescue,  and  what  man  would  not? 

But,  suppose  the  right  or  wrong  of  suffrage  should  be  given  to 
the  wife,  as  well  as  the  husband;  if  they  both  vote  alike,  there 
would  only  be  two  votes  to  count  instead  of  one  —  if  they  voted 
differently,  the  vote  of  one  would  neutralize  the  other.  If  they 
disagree  in  politics,  it  would  only  be  an  apple  of  discord  thrown 
into  the  hitherto  peaceful  family  circle. 

In  cities  where  drunkenness  prevails  and  where  votes  are  sold 
by  the  hundred  it  would  only  enable  the  drunken  husband  to  sell 
his  own  vote  and  that  of  his  wife  and  daughters,  if  he  has  any,  and 
get  drunk  on  the  recompense  received.  And  this  is  one  reason 
why  I  do  not  wish  to  submit  the  question  to  the  people.  The  lower 
down  you  go  in  our  cities  the  more  likely  they  will  be  to  vote  for 
it  with  the  idea  of  selling  the  vote  of  self  and  wife  and  female 
relatives. 

But  'tis  said  we  must  submit  this  question  of  female  suffrage  to 
the  people  and  that  the  people  will  decide  it  and  decide  it  correctly. 
Some  even  say  we  must,  out  of  deference  to  the  ladies  who  have 
so  eloquently  addressed  us,  submit  it  to  the  people  and  they  will 
vote  it  down.  If  after  all  the  eloquent  speeches  made  here  by  the 
ladies  and  gentlemen  pro  and  con,  and  after  the  bushels  of  printed 
documents  pro  and  con  that  have  been  showered,  without  stint,  upon 
us,  we  are  incapable  of  deciding  this  question  aright  for  the  best 
interest  of  the  State  and  the  ladies,  our  wives,  mothers  and  daugh- 
ters and  all  our  female  acquaintances,  how  can  we  expect  the 
people  at  large  and  the  ignorant  voters  in  our  city  and  villages  will 
be  able  and  properly  prepared  to  decide  it? 

Will  not  the  miserable  drunken  voters  in  many  of  our  cities  be 
inclined  to  vote  for  it,  for  the  reason  that  when  he  sells  his  vote  he 
can  sell  the  vote  of  his  wife  and  daughter,  if  he  has  any?  Will  giv- 
ing women  the  right  to  vote  produce  harmony  in  the  family? 

'Tis  said  persons  differing  in  their  religious  views  sometimes 
intermarry  and  we  have  not  found  it  necessary  to  enact  laws  to  pre- 
vent it.  Shall  we,  therefore,  pass  laws  to  undo  such  intermarriages? 
36 


562  REVISED   RECORD.  [Wednesday, 

They  are  not  now  common,  and  yet  many  of  them  do  produce  dis- 
cord in  families.  A  Protestant  marries  a  Catholic  and  then,  if  there 
are  children,  the  contest  arises  whether  they  shall  attend  a  Catholic 
school  or  church,  or  a  Protestant  school  or  church.  I  know  the 
female  sex  are  desirous  of  doing  everything  that  men  do.  '  Not 
content  with  attending  the  colleges  established  for  young  ladies, 
such  as  Vassar,  Smith,  Elmira  College  or  Wellesley,  excellent  col- 
leges where  a  first-rate  classical  education  can  be  obtained,  they 
are  seeking  an  entrance  into  colleges  established  for  young  men. 
They  are  seeking  positions  as  lawyers,  doctors  and  preachers. 
And,  if  the  young  men  ride  bicycles,  they  must  also  have  a  bicycle 
and  ride  it  through  the  streets  so  as  to  be  able  to  say  to  the  young 
men,  we  are  as  big  and  smart  as  any  of  you.  They  are  even  claim- 
ing that  they  have  a  prior  right  to  pantaloons,  and  that  they  first 
wore  them,  and,  therefore,  have  a  prior  right  to  them.  Do  not  let 
us  encourage  all  this  insanity.  It  does  not  pervade  the  mass  of 
women.  It  is  only  a  few  of  them  that  have  caught  this  wild  fever. 
The  marriage  to  good  husbands  would  cure  many  of  them  of  this 
fever;  it  is  only  an  epidemic  that  prevails  in  some  localities.  The 
mass  of  our  ladies,  wives  and  daughters,  have  not  caught  it. 

One  fnight  almost  be  inclined  to  say  of  some  of  them,  as  the 
little  boy  did  of  the  female  teacher  who  had  punished  him,  he 
whispered :  "  I  wish  you  were  dead  or  married."  I  would  not  go 
so  far  as  that,  but  would  say  of  some  of  the  leading  women  suffra- 
gists :  "  I  wish  you  were  well  married.''  I  withdraw  my  request  to 
be  excused  from  voting,  and  vote  aye.  (Applause.) 

The  report  of  the  committee  was  agreed  to  by  the  following  vote: 

Ayes  —  Messrs.  Acker,  Allaben,  Alvord,  Baker,  Banks,  Barnum, 
Barrow,  Becker,  Bowers,  Brown,  E.  A.,  Brown,  E.  R.,  Burr,  Cady, 
Clark,  G.  W.,  Clark,  H.  A.,  Cochran,  Cookinham,  Danforth,  Daven- 
port, Davies,  Davis,  Deady,  Deterling,  Deyo,  Doty,  Durfee,  Emmet, 
Farrell,  Foote,  Forbes,  Francis,  Frank,  Andrew,  Fuller,  C.  A.,  Gal- 
inger,  Gibney,  Giegerich,  Goeller,  Goodelle,  Green,  A.  H.,  Griswold, 
Hamlin,  Hawley,  Hecker,  Hill,  Hirschberg,  Holls,  Hotchkiss,  Hot- 
tenroth,  Jacobs,  Johnson,  J.,  Johnston,  Kellogg,  Kimmcy, 
Kinkel,  Kurth,  Lester,  Lewis,  C.  H.,  Lewis,  M.  E.,  Lyon,  Mantanye, 
Marks,  Marshall,  McCurdy,  Mclntyre,  McLaughlin,  C.  B.,  McMil- 
lan, Mereness,  Meyenborg,  Nichols,  Nicoll,  Nostrand,  O'Brien, 
Ohmeis,  Parkhurst,  Parm enter,  Pashley,  Peabody,  Peck,  Platzek, 
Porter,  Pratt,  Putnam,  Root,  Spencer,  Steele,  A.  B.,  Steele,  W.  H., 
Storm,  Sullivan.  T.  A.,  Tekulsky,  Truax,  C.  H.,  Turner,  Vogt,  Well- 
ington, Whitmyer.  Wi  germs.  Williams,  Woodward,  President  —  98. 


August  15.]  CONSTITUTIONAL  CONVENTION.  563 

Noes  —  Messrs.  Abbott,  Ackerly,  Arnold,  Barhite,  Blake,  Camp- 
bell, Carter,  Cassidy,  Chipp,  Jr.,  Church,  Coleman,  Cornwell, 
Countryman,  Crosby,  Dean,  Dickey,  Durnin,  Fields,  Floyd, 
Frank,  Augustus,  Fraser,  Gilbert,  Gilleran,  Hedges,  Hoi- 
comb,  Jenks,  Kerwin,  Lauterbach,  Lincoln,  Manley,  Maybee, 
McArthur,  McDonough,  McKinstry,  McLaughlin,  J.  W.,  Moore, 
Morton,  Mulqueen,  Osborn,  Parker,  Phipps,  Pool,  Powell,  Red- 
man, Roche,  Rowley,  Sandford,  Schumaker,  Smith,  Speer,  Spring- 
weiler,  Sullivan,  W.,  Tibbetts,  Titus,  Towns,  Tucker,  Vedder,  Yee- 
der  — 58. 

On  motion  of  Mr.  Cookinham  the  Convention,  at  11.24, 
adjourned  to  Thursday  morning. 


Thursday,  A.  M.,  August  16,  1894. 

The  Constitutional  Convention  of  the  State  of  New  York  met 
in  the  Assembly  Chamber  at  the  Capitol,  Albany,  N.  Y.,  Thursday 
morning,  August  16,  1894. 

President  Choate  called  the  Convention  to  order  at  ten  o'clock. 
The  Rev.  Dr.  Schlesinger  offered  prayer. 

On  motion  of  Mr.  O'Brien  the  reading  of  the  Journal  of  yester- 
day was  dispensed  with. 

Mr.  M.  E.  Lewis  —  Mr.  President,  I  ask  to  be  excused  from 
attendance  on  Saturday  of  this  week,  on  account  of  business 
engagements. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Lewis,  as  requested,  and  it  was  determined  in  the  affirmative. 

Mr.  Jenks  —  Mr.  President,  I  ask  to  be  excused  from  attendance 
on  Saturday  of  this  week  on  account  of  business  engagements. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Jenks,  and  it  was  determined  in  the  affirmative. 

Mr.  Arnold  —  Mr.  President,  I  ask  to  be  excused  from  attendance 
on  Saturday  on  account  of  pressing  business  engagements. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Arnold,  and  it  was  determined  in  the  affirmative. 

Mr.  Deyo  —  Mr.  President,  owing  to  a  pressing  personal  engage- 
ment, I  ask  to  be  excused  on  Saturday  and  Monday. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Deyo,  as  requested,  and  it  was  determined  in  the  affirmative. 


564  REVISED   RECORD.  [Thursday, 

Mr.  Porter  —  Mr.  President,  I  ask  to  be  excused  from  attend- 
ance on  Saturday  of  this  week  and  Monday  of  next  week. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Porter,  and  it  was  determined  in  the  affirmative. 

Mr.  Abbot  —  Mr.  President,  I  desire  to  be  excused  on  Monday 
and  Tuesday  on  account  of  a  professional  engagement  of  long 
standing. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Abbott,  and  it  was  determined  in  the  affirmative. 

Mr.  Griswold  —  Mr.  President,  I  ask  to  be  excused  on  Saturday 
of  this  week  on  account  of  a  pressing  engagement. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Griswold,  and  it  was  determined  in  the  affirmative. 

Mr.  H.  A.  Clark  —  Mr.  President,  I  ask  to  be  excused  on  Mon- 
day of  next  week  on  account  of  an  important  business  engagement. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Clark,  and  it  was  determined  in  the  affirmative. 

Mr.  Hottenroth  —  Mr.  President,  I  desire  to  be  excused  on  Fri- 
day afternoon  and  evening  and  Saturday's  sessions. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Hottenroth,  and  it  was  determined  in  the  affirmative. 

Mr.  Mulqueen  —  Mr.  President,  I  ask  to  be  excused  on  Monday. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Mulqueen,  and  it  was  determined  in  the  affirmative. 

Mr.  McClure  —  Mr.  President,  I  ask  to  be  excused  for  Monday 
of  next  week. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  McClure,  and  it  was  determined  in  the  affirmative. 

Mr.  Deady  —  Mr.  President,  I  would  like  to  be  excused  Saturday 
and  Monday. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Deady,  and  it  was  determined  in  the  affirmative. 

Mr.  Kimmey  —  Mr.  President,  owing  to  a  previous  engagement, 
I  desire  to  be  excused  on  Friday  evening  and  Saturday. 

The  President  put  the  question  on  excusing  Mr.  Kimmey,  and 
it  was  determined  in  the  affirmative. 

Mr.  Forbes  —  Mr.  President,  I  desire  to  be  excused  on  Satuf- 
day  and  Monday. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Forbes,  and  it  was  determined  in  the  affirmative. 


August  16.]   .       CONSTITUTIONAL  CONVENTION.  565 

Mr.  Veeder  —  Mr.  President,  I  rise  to  a  question  of  privilege. 
The  President  —  Mr.  Veeder  will  state  his  question  of  privilege. 
Mr.  Veeder  —  Is  there  a  quorum  still  left? 
The  President  —  Now  in  the  House? 

Mr.  Veeder  —  I  mean  left  after  these  excuses  already  made  have 
been  granted? 

The  President  —  Well,  the  Convention  will  have  to  look  out  for 
that.  There  have  not  been  a  sufficient  number  of  excuses  as  yet 
to  prevent  a  quorum. 

Mr.  Mereness  —  Mr.  President,  I  received  news  this  morning 
of  illness  in  my  family.  I  have  not  made  any  excuses  heretofore, 
and  I  feel  that  it  is  necessary  and  proper  that  I,  at  least,  be  excused 
so  as  to  be  with  my  family  over  Sunday.  I  ask  to  be  excused  Sat- 
urday afternoon  and  Monday. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Mereness,  and  it  was  determined  in  the  affirmative. 

Mr.  Acker  —  Mr.  President,  I  would  like  to  go  to  the  races  this 
afternoon,  and  for  that  purpose  I  would  like  to  be  excused. 
(Laughter.) 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Acker,  and  it  was  determined  in  the  affirmative. 

Mr.  Springweiler  —  Mr.  President,  I  ask  to  be  excused  Saturday 
and  Monday. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Springweiler,  and  it  was  determined  in  the  affirmative. 

Mr.  Moore  —  Mr.  President,  in  order  that  I  may  act  understand- 
ingly  in  voting  to  grant  any  more  excuses,  I  ask  that  the  Secretary 
will  state  the  number  now  excused. 

The  President  —  That  number  will  be  ascertained  by  the  Secre- 
tary, and  no  motion  will  be  put  until  the  information  is  forthcoming. 

The  Secretary  informs  me  that  sixteen  have  been  excused  for 
Saturday  and  Monday. 

Mr.  A.  B.  Steele  —  Mr.  President,  before  the  Convention  had 
decided  to  hold  sessions  on  Monday  I  made  a  legal  engagement 
that  I  am  unable  to  obviate  for  next  Monday,  and  I,  therefore,  ask 
to  be  excused  for  that  day. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Steele,  and  it  was  determined  in  the  affirmative. 

The  President  —  The  Secretary  will  now  call  the  list  of  com- 


566  REVISED   RECORD.  [Thursday, 

mittees  for  the  reports  ordered  to  be  presented  to-day  as  to  the  con- 
dition of  the  business  before  us. 

The  Secretary  —  The  Committee  on  Preamble  and  Bill  of  Rights. 

The  President  —  Has  Mr.  Francis  any  further  report  to  make 
as  to  the  condition  of  business  before  the  Committee  on  Preamble 
and  Bill  of  Rights? 

Mr.  Francis  —  I  have  some  reports  that  are  in  course  of  prepara- 
tion and  will  be  here  within  a  very  short  time. 

The  President  —  The  only  object  of  this  call  is  for  chairmen  of 
committees  to  state  the  condition  of  business  before  their  respective 
committees. 

Mr.  Francis  —  I  will  say,  in  reference  to  the  condition  of  our 
business,  that  it  is  practically  finished,  and  so  we  shall  make  our 
report  to  the  Convention. 

The  Secretary  —  Legislative  Organization. 

The  President  —  Is  Mr.  Becker  present? 

Mr.  Lincoln  —  On  the  ques-tion  of  the  report  from  the  Committee 
on  Legislative  Organization,  in  the  absence  of  the  chairman,  I 
would  say  that  that  committee  is  now  actively  engaged  in  its  work 
and  hopes  to  be  able  to  make  a  final  report  by  the  twenty-first. 

The  Secretary  —  Legislative  Powers  and  Duties. 

Mr.  Vedder  —  I  am  directed  by  the  Committee  on  Legislative 
Powers  and  Duties  to  state  that  that  committee  has  had  fifty-seven 
proposed  amendments  submitted  to  it,  and  a  number  of  petitions 
and  resolutions,  and  the  committee  have  disposed  of  all  of  them, 
and  has  nothing  more  to  do,  so  far  as  that  committee  is  concerned, 
and,  so  far  as  that  committee  is  concerned,  it  is  prepared  to  adjourn 
sine  die. 

The  Secretary  —  Governor  and  State  Officers. 

Mr.  McMillan  —  The  Committee  on  Governor  and  State  Officers, 
under  the  resolution  of  August  10,  1894,  would  respectfully  report 
that  the  whole  number  of  proposed  amendments  referred  to  the 
committee  is  thirty-two.  Your  committee  has  taken  action  on 
twenty-nine  of  those  proposed  amendments,  as  follows:  Adversely, 
twenty-eight;  favorably,  one.  Two  of  the  proposed  amendments 
are  held  to  await  the  action  of  the  Convention  upon  the  article  rela- 
tive to  the  government  of  cities,  and  one  is  still  under  consideration. 
The  committee  can  clear  its  docket  as  soon  as  action  is  taken  on 
the  cities  article. 

The  Secretary  —  Judiciary. 


August  16.]  CONSTITUTIONAL  CONVENTION.  567 

Mr.  Root  —  Mr.  President,  the  Judiciary  Committee  has  had 
under  consideration  seventy-four  amendments.  It  has  reported, 
either  specifically  or  by  reporting  the  sections  to  which  the  pro- 
posed amendments  refer,  upon  fifty-five.  It  has  acted  upon  five 
more  and  the  reports  are  now  ready  to  be  submitted.  It  has  acted 
upon  six  more,  the  introducers  of  which  do  not  desire  any  reports. 
It  holds  five,  because  some  further  hearing  is  desired  by  the  intro- 
ducers, or  because  some  additional  information  is  desired  by  them 
before  the  committee  acts  upon  them,  and  of  the  remaining  three, 
one  has  been  considered  and  a  report  has  been  drafted,  which  is 
now  in  the  hands  of  each  member  of  the  committee  for  the  purpose 
of  revision. 

The  Secretary  —  State  Finances  and  Taxation. 

Mr.  Acker  —  The  Committee  on  State  Finances  and  Taxation, 
pursuant  to  the  resolution  of  the  Convention  adopted  August  tenth, 
requiring  information  as  to  the  condition  of  business  before  it, 
respectfully  reports  that  it  has  voted  to  report  to  the  Convention 
adversely,  if  at  all,  nearly  all  the  propositions  referred  to  it.  The 
propositions  not  yet  acted  upon  are  in  the  hands  of  an  efficient  sub- 
committee, and  will  be  presented  to  the  Convention  on  or  before 
August  twenty-first,  unless  further  time  is  granted. 

Mr.  Parmenter  —  Mr.  President,  I  desire  to  present  a  minority 
report  upon  the  judiciary  article,  O.  No.  383,  reported  by  the 
majority  of  the  Judiciary  Committee. 

DOCUMENT  No.  36. 

Minority  Report  of  the  Committee  on  Preamble  and  Bill  of  Rights 
on  the  Proposed  Constitutional  Amendment  to  Amend  Article 
i  of  the  Constitution,  as  to  Damages  for  the  Loss  of  Human 
Life  —  No.  192;  Int.  191. 

The  undersigned,  a  minority  of  the  Committee  on  Preamble  and 
Bill  of  Rights,  present  the  following  report: 
We  recommend  to  the  Convention  the  following: 

Proposed  constitutional   amendment,   to   amend   article    i    of   the 
Constitution,  as  to  damages  for  the  loss  of  human  life. 

The  Delegates  of  the  People  of  the  State  of  New  York,  in  Convention 
assembled,  do  propose  as  follows: 

Article  i  of  the  Constitution  is  hereby  amended  by  inserting  the 
following  as  a  new  section: 

Sec.  — .  The  right  of  action  is  hereby  given  for  loss  of  life  and 
for  injury  to  the  person,  and  no  statutory  limitation  shall  be  placed 


568  REVISED  RECORD.  [Thursday, 

upon  the  amount  of  damages  recoverable,  or  upon  the  right  to 
recover  by  civil  action  for  the  loss  of  human  life  or  for  injury  to  the 
person. 

GIDEOX  J.  TUCKER. 

W.  D.  VEEDER. 

ANDREW  H.  GREEN. 

The  President  —  This  minority  report,  under  the  rules,  will  be 
received  and  printed. 

The  Secretary  —  The  Cities  Committee. 

Mr.  Jesse  Johnson  —  Mr.  President,  without  consulting  with  the 
committee,  having  been  away,  I  think  I  can  report  this  (if  a  verbal 
report  is  acceptable):  The  Cities  Committee  now  have  before  them 
article  No.  13  for  revision.  They  purpose  to  take  up  the  subject 
of  franchises  and  submit  it  at  an  early  day ;  also,  the  question  of  debt 
limitation.  In  both  cases  an  amendment  is  nearly  prepared. 
I  have  no  further  report. 

The  Secretary  —  Committee  on  Canals. 

Mr.  Cady  —  Mr.  President,  the  Canal  Committee  has  taken  final 
action  on  all  the  amendments  submitted  to  it,  and  will  be  able  to 
make  its  final  report  within  the  time  prescribed  by  the  resolution. 

The  Secretary  —  Committee  on  Railroads. 

Mr.  Davies  —  The  Committee  on  Railroads  hopes  to  close  up 
all  business  referred  to  it  and  make  a  final  report  thereon  on  or 
before  the  twenty-first  of  August. 

The  Secretary  —  Committee  on  Corporations. 

Mr.  Hawley  —  The  Committee  on  Corporations  have  considered 
all  of  the  amendments  which  have  been  referred  to  it.  It  has  com- 
pleted the  business  before  it,  and  expects  to  have  no  more  and  to 
make  no  more  reports  to  the  Convention. 

The  Secretary  —  The  Committee  on  County,  Town  and  Village 
Government. 

Mr.  C.  B.  McLaughlin  —  Mr.  President,  the  Committee  on 
County,  Town  and  Village  Government  has  completed  all  the 
work  that  has  been  sent  to  it  and  has  so  reported  to  the  Conven- 
tion. There  is  nothing  in  the  hands  of  that  committee  at  this  time. 

The  Secretary  —  The  Committee  on  County,  Town  and  Village 
Officers. 

Mr.  Parkhurst  presented  a  written  report,  which  the  Secretary 
read  as  follows: 


August  16.]  CONSTITUTIONAL  CONVENTION.  569 

The  Committee  on  County,  Town  and  Village  Officers  respect- 
fully report  that  it  has  finally  disposed  of  all  matters  referred  to  said 
committee. 

(Signed.)        J.  F.  PARKHURST, 

Chairman. 

Mr.  Parkhurst,  from  the  Committtee  on  County,  Town  and  Vil- 
lage Officers,  also  presented  the  following  report,  which  the  Secre- 
tary read  as  follows: 

The  Committee  on  County,  Town  and  Village  Officers,  to  whom 
was  referred  the  resolutions  offered  by  Mr.  McKinstry,  in  reference 
to  the  defalcations  of  county  treasurers,  etc.,  respectfully  recom- 
mend the  passage  of  said  resolution,  Xo.  164. 

The  President  put  the  question  on  the  adoption  of  said  resolution, 
and  it  was  determined  in  the  affirmative. 

The  Secretary  —  Committee  on  State  Prisons. 

Mr.  McDonough,  from  said  committee,  presented  a  written 
report,  which  the  Secretary  read  as  follows: 

The  Committee  on  State  Prisons,  etc.,  reports  to  the  Convention 
that  the  said  committee  has  disposed  of  all  business  referred  to  it, 
and  that  all  amendments  referred  to  said  committee  have  been 
reported  either  favorably  or  adversely. 

(Signed)        JOHN  T.  McDONOUGH, 

Chairman. 
The  Secretary  —  Committee  on  Militia. 

Mr.  Hedges  —  The  Committee  on  Militia  have  considered  all 
matters  before  them,  and  expect  to  finally  report  on  the  twenty-first 
instant. 

The  Secretary  —  The  Committee  on  Education. 

Mr.  Holls  —  Mr.  President,  the  Committee  on  Education  has  had 
referred  to  it  twelve  proposed  amendments,  and  has  also  received 
numerous  suggestions  and  propositions,  not  in  the  form  of  amend- 
ments, both  from  members  of  this  Convention  and  from  educators 
of  the  State.  It  has  considered  them  all,  and,  with  the  exception 
of  one  subject  which  has  only  very  lately  been  presented  to  them, 
it  has,  substantially,  completed  its  labors.  There  is  no  reason  to 
doubt  that  the  committee  will  be  able  to  report  finally  the  articles 
as  agreed  upon  for  the  consideration  of  this  Convention  on  or  before 
the  date  set  by  the  resolution. 

The  Secretary  —  The  Committee  on  Charities. 

Mr.  Lauterbach  —  Mr.   President,  the  Committee  on   Charities 


570  REVISED   RECORD.  [Thursday, 

has  considered  all  propositions  submitted  to  it,  as  well  as  all  peti- 
tions referred  to  the  committee,  and  has  disposed  of  them  by  formu- 
lating a  proposed  amendment,  which  will  emanate  from  the  com- 
mittee and  which  will  be  submitted  to  the  Convention  on  Monday, 
together  with  a  statement  accompanying  it  and  explaining  it. 
The  amendment  when  submitted  will  be  referred  (if  the  Convention 
will  be  willing)  to  the  Committee  on  Governor  and  State  Officers, 
as  it  contemplates  the  creation  of  three  constitutional  boards  which 
are  not  now  in  existence,  and  also  to  the  Committee  on  State 
Prisons,  as  one  of  the  boards  contemplated  will  have  jurisdiction 
of  such  institutions.  The  proposed  amendment  and  statement  or 
report  will  be  submitted  on  Monday. 

The  Secretary  —  The  Committee  on  Industrial  Interests. 

Mr.  Gilbert  —  Mr.  President,  I  think  this  committee  will  have 
a  final  report  of  all  matters  submitted  to  it  by  the  twenty-first. 

I  think  there  is  one  matter  which  stands  in  a  peculiar  way,  to 
which  I  wish  to  call  the  attention  of  the  Convention,  and  I  am 
directed  by  the  committee  to  report  to  the  Convention  the  situation 
as  to  proposed  amendment  No.  95,  introduced  by  Mr.  Burr,  relating 
to  monopolies  and  trusts.  That  proposed  amendment  was  referred 
to  our  committee  and  has  been  considered  by  it  and  was  referred  to 
a  sub-committee,  which  had  also  considered  it.  To  our  surprise 
about  a  week  ago  the  Committee  on  Corporations  reported  a  pro- 
posed amendment,  which  is  now  on  general  orders  Xo.  26,  covering 
precisely  the  same  subject,  the  subject  which  was  before  our  com- 
mittee. I  am  directed  by  the  Committee  on  Industrial  Interests  to 
ask  to  be  excused  from  the  further  consideration  of  No.  95,  for  the 
reason  that  we  have  already  been  anticipated  by  a  committee  to 
which  I  understand  the  matter  had  not  been  referred,  but  on  which 
they  acted  upon  their  own  motion.  We  ask  simply  to  be  excused. 

Mr.  Burr  —  Mr.  President,  I  trust  that  the  Committee  on  Indus- 
trial Interests  will  not  be  discharged  from  the  further  considera- 
tion of  this  proposed  amendment.  I  had  the  honor  to  submit  to 
the  Convention  on  the  twenty-ninth  day  of  May  last  a  proposed 
amendment  prohibiting  the  formation  of  trusts  or  combinations  to 
regulate  the  price  or  control  the  production  of  any  commodity,  and 
that  was  referred  to  the  Committee  on  Industrial  Interests.  In 
obedience  to  the  call  of  that  committee,  I  appeared  and  explained 
the  views  I  had  upon  that  subject,  and  I  hope  to  the  satisfaction 
of  the  committee.  Now,  later  on,  the  Committee  on  Corporations 
took  up  the  subject  and  my  amendment,  as  I  am  informed,  and  they 
reported  to  the  Convention,  substantially,  the  amendment  I  pro- 


August  16.]          CONSTITUTIONAL  CONVENTION.  571 

posed.  I  believe,  sir,  that  is  a  good,  a  valuable  and  a  wise  amend- 
ment, and  I  want  to  have  the  support  of  the  committee  to  which  it 
was  particularly  referred,  and  for  that  reason  I  am  anxious  to  secure 
that  report.  I  ask  that  that  committee,  favorably  disposed  as  it  is 
to  this  amendment,  be  not  discharged  from  its  consideration. 

Mr.  Lester  —  Mr.  President,  I  hope  the  Convention  will  excuse 
the  Committee  on  Industrial  Interests  of  the  State  from  the  further 
consideration  of  this  proposition.  All  the  work  that  it  is  possible 
for  the  committee  to  do,  with  respect  to  such  a  matter,  I  under- 
stand, has  been  accomplished  by  the  Committee  on  Corporations. 
It  has  given  attention  to  the  matter.  It  has  reported  a  proposed 
amendment  in  the  form  which  it  deems  best  suited  to  accomplish  the 
purposes  sought  to  be  accomplished  by  this  proposed  amendment, 
and  I  see  nothing  further  for  any  committee  as  such  to  do  with  the 
proposition  under  consideration.  It  has  reached  the  point  where  it 
should  be  considered  by  the  Convention,  and  I  see  no  reason  why  it 
should  be  delayed  longer  in  any  committee.  It  is  now  on  general 
orders  and  that  is  the  place,  it  seems  to  me,  where  it  belongs. 
I  hope  the  request  of  the  committee  to  be  relieved  from  the  further 
consideration  will  be  granted  by  the  Convention. 

The  President  put  the  question  on  the  motion  to  discharge  the 
Committee  on  Industrial  Interests  from  the  further  consideration 
of  No.  95,  on  the  ground  that  it  has  already  been  considered  by 
the  Committee  on  Corporations,  and  it  was  determined  in  the 
affirmative. 

The  Secretary  —  Banking  and  Insurance. 

Mr.  Augustus  Frank  —  Mr.  President,  the  committee  are  not 
ready  yet  to  report  finally.  Another  meeting  will  be  held  to-day. 
Several  matters  are  before  the  committee  of  interest,  which  will 
then,  I  think,  be  decided,  and  we  will  be  able  to  report  in  a  very 
short  time,  perhaps  by  the  twenty-first. 

The  Secretary  —  Salt  Springs. 

Mr.  Alvord  —  Mr.  President,  the  committee,  of  which  I  have  the 
honor  to  be  chairman,  has  had  one  proposition  before  it.  It  has 
reported  that  favorably,  and  it  is  now  in  Committee  of  the  Whole 
of  the  Convention.  We  have  had  no  further  meetings,  and  no  fur- 
ther meeting  has  been  required. 

The  Secretary  —  The  Committee  on  Indians. 

Mr.  C.  H.  Lewis  —  Mr.  President,  this  committee  has  considered 
the  proposition,  which  was  referred  to  it,  with  respect  to  the  sale 
of  Indian  lands  and  Indian  titles,  and  have  also  considered  the  peti- 


572  REVISED  RECORD.  [Thursday, 

tions  that  have  been  referred  to  it,  and  the  committee  is  able  to  make 
its  final  report  this  morning. 

The  Secretary  —  The  Committee  on  Constitutional  Amendments. 

Mr.  Marshall  —  Mr.  President,  the  committee  has  considered  all 
matters  referred  to  it,  and  is  prepared  to  make  a  final  report  in  refer- 
ence to  them. 

The  Secretary  —  The  Committee  on  Revision  and  Engrossment. 

Mr.  Foote  —  Mr.  President,  I  do  not  know  that  any  report  is 
required  from  our  committee,  but  I  may  say  that  we  have  reported  to 
this  Convention  all  measures  referred  to  us,  except  one,  which  was 
referred  to  us  yesterday,  general  order  No.  16. 

The  Secretary  —  Privileges  and  elections. 

Mr.  Hirschberg — Mr.  President,  the  Committee  on  Privileges 
and  Elections  have  the  contest  in  the  Second  Senatorial  District 
before  them  and  undisposed  of.  I  hope  to  have  a  meeting  of  the 
committee  during  the  day,  and  think  that  case  will  be  taken  up 
at  that  time  and  a  report  agreed  upon.  One  other  matter  before 
the  committee  is  the  bill  presented  from  the  parties  to  the  contest 
in  the  Erie  county  district,  which  was  referred  to  this  committee 
jointly  with  the  Committee  on  Contingent  Expenses.  There  has 
been  no  joint  meeting  of  these  two  committees.  There  may  be  one 
before  long,  providing  the  time  can  be  obtained  to  hold  meetings. 

The  Secretary  —  The  Printing  Committee. 

Mr.  Hamlin  —  Mr.  President,  I  do  not  know  that  any  special 
report  is  required  from  this  committee.  I  can  only  say  that  your 
committee  is  in  a  state  of  most  delightful  quietness. 

The  Secretary  —  The  Committee  on  Contingent  Expenses. 

Mr.  Lyon  —  Mr.  President,  I  can  only  say  that  the  report  of  our 
committee  is  in  the  condition  that  Mr.  Hirschberg  has  stated.  The 
only  matter  before  the  committee  is  the  matter  in  regard  to  the 
expenses  of  the  Erie  county  contest. 

The  Secretary  —  The  Committee  on  Rules. 

The  President  —  We  have  nothing  to  report. 

The  Secretary  —  The  Committee  on  Suffrage. 

Mr.  Goodelle  —  The  committee  has  its  work  substantially  before 
this  Convention.  At  our  next  meeting  we  shall,  doubtless,  prepare 
propositions  and  submit  them  to  the  Convention  within  the  time 
stated. 

The  Secretary  —  Forest  Preservation. 

Mr.  McClure  —  Mr.  President,  the  only  matter  submitted  to  that 


August  16.]  CONSTITUTIONAL  CONVENTION.  573 

committee  has  been  considered  and  a  hearing  was  had  yesterday. 
Another  hearing  has  been  set  down  for  next  week,  at  the  close  of 
which  the  committee  expects  to  make  its  report. 

The  Secretary  —  The  Select  Committee  under  rule  73,  Mr.  E.  R. 
Brown,  chairman. 

The  Select  Committee  on  Civil  Service. 

Mr.  Gilbert  —  All  amendments  referred  to  the  Committee  on  Civil 
Service  have  been  acted  upon,  and  are  before  the  House. 

The  Secretary  —  Select  Committee  on  Land  Titles. 
Mr.  A.  H.  Green  —  Mr.  President,  we  have  presented  all  the 
reports  we  have  to  make. 

Mr.  Becker  —  Mr.  President,  may  I  beg  the  indulgence  of  the 
Convention  to  return  to  the  report  of  the  Committee  on  Legislative 
Organization.  I  have  a  written  report  which  was  prepared 
yesterday. 

The  President  —  The  Secretary  will  read  the  written  report. 

The  Secretary  read  the  report  as  follows: 

To  the  Honorable  Constitutional  Convention: 

In  the  opinion  of  the  chairman  of  the  Committee  on  Legislative 
Organization  the  status  of  the  business  before  that  committee  is 
such  that  it  will  be  able  to  report  on  or  before  the  twenty-first  inst. 
upon  all  matters  pending  before  said  committee,  except,  possibly, 
as  to  the  term  of  the  members  of  the  Legislature,  which  should  be 
delayed  possibly  until  the  Convention  has  passed  upon  the  ques- 
tion of  separating  State  from  municipal  elections. 

(Signed)        TRACY  C.  BECKER, 

Chairman. 

Mr.  Francis  —  Mr.  Chairman,  I  beg  leave  to  present  the  following 
report : 

The  President  —  The  Secretary  will  read  the  report. 

The  Secretary  read  the  report  as  follows: 

The  chairman  of  the  Committee  on  Preamble  and  Bill  of  Rights 
reports  that  the  committee  has  taken  action  upon  the  proposed 
constitutional  amendments  referred  to  it  and  has  submitted  to  the 
Convention  reports  thereon.  Having  completed  its  work,  it  now 
requests  to  be  discharged  from  further  committee  service. 

Mr.  Francis,  from  the  Committee  on  Preamble  and  Bill  of  Rights. 
also  reported  proposed  constitutional  amendment  (introductory 
No.  384,  printed  No.  425),  to  amend  section  10,  article  I  of  the  Con- 


574  REVISED  RECORD.    .  [Thursday, 

stitution  in  relation  to  the  suppression  of  gambling,  the  same  being 
reported  for  the  purpose  of  having  it  considered  in  Committee  of 
the  Whole,  and  without  further  action  by  the  committee. 
Referred  to  the  Committee  of  the  Whole. 

The  President  —  Before  the  general  orders  are  taken  up,  will  the 
Convention  allow  the  Chair  to  make  a  single  observation,  and  to 
call  the  attention  of  the  Convention  to  the  fact  that  there  are  now 
on  generals  orders  not  less  than  forty-five  separate  and  independent 
matters.  It  is  quite  evident  from  the  reports  made  this  morn- 
ing that  that  list,  within  a  very  few  days,  will  be  very  largely 
increased  by  the  report  of  further  amendments;  that,  assum- 
ing that  the  last  week  prior  to  the  fifteenth  of  September  will  be 
necessary  for  the  work  of  final  revision,  there  remain  but  fifty-nine 
sessions  of  the  Convention,  assuming  that  we  hold  three  sessions 
a  day,  except  Saturday,  and  two  on  that  day.  Very  prompt  and 
vigorous  action  will  be  required,  inasmuch  as  there  would  not  be 
a  session  for  each  of  these  amendments,  for  the  consideration  of 
each  of  these  amendments,  and  for  many  of  them  it  is  obvious  that 
many  sessions  are  required.  The  Chair  does  not  understand  that  it 
is  necessary  to  wait  for  the  convenience  or  preparation  of  the  mover 
of  an  amendment  in  order  to  have  it  moved  in  the  Committee  of 
the  Whole  and  disposed  of,  and  that  it  will  be  in  the  power  of  any 
gentleman  to  move  the  consideration  by  the  Committee  of  the 
Whole  immediately  of  any  amendment. 

The  Secretary  will  call  the  general  orders. 

Mr.  McKinstry  —  Mr.  President,  I  ask  unanimous  consent  to 
present  a  resolution  and  have  it  referred  to  the  Committee  on 
Printing. 

The  President  —  The  Secretary  will  read  the  resolution. 
The  Secretary  read  the  resolution  as  follows : 

R.  174. —  Resolved,  That  3,500  extra  copies  of  the  debates  of 
Wednesday  evening,  August  eighth;  Thursday  evening,  August 
ninth;  Tuesday  evening,  August  fourteenth,  and  Wednesday  even- 
ing, August  fifteenth,  be  printed  for  the  use  of  the  members  of 
the  Convention. 

The  President  —  What  subject  do  they  relate  to,  Mr.  McKinstry? 

Mr.  McKinstry  —  It  relates  to  the  suffrage  debates.  I  desire  to 
have  the  resolution  referred  to  the  Committee  on  Printing. 

The  President  —  It  is  referred  to  the  Committee  on  Printing. 
The  Secretary  called  general  orders. 


August  16.]  CONSTITUTIONAL  CONVENTION.  575 

General  order  Xo.  2,  by  Mr.  Roche,  prohibiting  the  granting  of 
pensions  to  any  civil  officer  or  employe. 
'  Not  moved. 

General  order  Xo.  6,  introduced  by  Mr.  Alvord,  to  amend  section 
7  of  article  7,  relating  to  salt  springs. 

Mr.  Alvord  —  I  move  that,  Mr.  President.  I  move  that  the  Con- 
vention go  into  Committee  of  the  Whole  on  O.  Xo.  9,  general 
order  Xo.  6. 

The  President  put  the  question  on  the  motion  of  Mr.  Alvord,  and 
it  was  determined  in  the  affirmative. 

The  Convention  resolved  itself  into  Committee  of  the  Whole. 
Mr.  Bush  in  the  chair. 

The  Chairman  —  The  Convention  is  now  in  Committee  of  the 
Whole  on  general  order  Xo.  6,  introduced  by  Mr.  Alvord. 
The  Secretary  read  the  proposed  amendment. 

Mr.  Marshall  —  I  think  that  the  various  amendments  which  were 
offered  to  general  order  Xo.  6,  as  printed  (introductory  No.  9), 
were  withdrawn  at  the  time  of  our  last  session,  and  I  now  desire  to 
offer  as  a  substitute  for  the  amendment 

The  Chairman  —  The  Secretary  informs  the  Chair  that  one 
amendment  was  accepted  and  another  one  was  pending. 

The  Secretary  —  Mr.  Abbott  moved  to  amend  by  striking  out 
all  of  line  i,  Mr.  Marshall  offered  a  substitute,  and  Mr.  E.  R.  Brown 
moved  to  strike  out  all  after  the  word  "abrogated"  in  line  i.  That 
is  the  record  here.  \ 

Mr.  Abbott  —  I  think  I  withdrew  my  amendment  at  the  time. 
If  not,  I  will  do  so  now. 

The  Chairman  —  Well,  if  there  is  no  objection,  it  will  be  with- 
drawn now. 

Mr.  Marshall  —  I  desire  to  discuss  the  substitute  which  was 
offered  by  me  at  the  time  of  our  last  discussion  of  this  amendment. 

The  Chairman  —  The  Chair  is  informed  that  there  is  one  amend- 
ment pending,  offered  by  Mr.  E.  R.  Brown. 

Mr.  Marshall  —  Well,  I  will  discuss  that. 

The  Secretary  again  read  the  amendment  offered  by  Mr.  Brown, 
to  "strike  out  all  after  the  word  'abrogated,'  in  line  i." 

Mr.  Marshall  —  Mr.  Chairman,  since  the  last  hearing  on  this 
matter  in  Committee  of  the  Whole,  certain  information  which 
was  sought  has  been  given  to  the  Convention  in  several  reports, 
one  by  the  Secretary  of  State  and  one  by  the  Superintendent  of  the 


5;6  REVISED  RECORD.  [Thursday, 

Onondaga  Salt  Springs  Reservation.  The  Secretary  of  Staie 
reported  that  there  were  no  data  in  his  office  which  would  give  to 
the  Convention  such  information  as  it  desired  as  to  the  number  of 
acres  constituting  the  Onondaga  Salt  Springs  Reservation,  and  gave 
some  historical  information  which  is  quite  interesting,  but  which 
is  not  very  material  upon  the  question  to  be  determined  by  this 
Convention.  That  report  gave  the  history  of  the  title  and  gave 
the  form  of  some  of  the  leases  which  were  executed  by  the  State 
to  various  persons  who  are  operating  salt  blocks  and  are  using 
lands  which  are  devoted  to  the  manufacture  of  coarse  salt  in  Onon- 
daga county.  The  next  report  which  was  submitted  was  that  of 
the  Superintendent  of  the  Salt  Springs,  which  is  Document  Xo.  39. 
In  brief,  the  information  which  is  'given  in  that  document,  is  that 
the  lands  composing  the  reservation  consists  of  about  900  acres. 
These  lands  are  devoted  partly  to  the  manufacture  of  coarse  salt, 
and  partly  to  the  manufacture  of  fine  salt.  The  coarse  salt  lands, 
it  is  stated,  are  leased  by  the  State  to  various  individuals,  for  no 
definite  period  of  time,  and  the  fine  salt  lands  are  leased  by  leases 
which  expired  by  limitation  on  the  2Oth  of  June,  1889,  but  which 
lands  are  still  occupied  by  the  several  lessees,  under  various  claims 
of  the  right  to  a  renewal  of  the  leases  by  virtue  of  the  provisions 
of  the  various  statutes  regulating  the  Onondaga  Salt  Springs  Reser- 
vation, particularly  the  act  of  1859.  It  is  now  very  apparent  to 
those  who  are  at  all  familiar  with  the  Onondaga  Salt  Springs  Reser- 
vation that  the  time  has  come  when  the  State  should  part  with  its 
ownership  in  these  lands;  at  any  rate,  when  the  State  should  go  out 
of  the  business  of  manufacturing  salt.  At  the  time  when  the  con- 
stitutional provision  was  adopted,  which  was  to  the  effect  that  the 
lands  should  be  held  forever  for  the  use  of  the  State  for  the  manufac- 
ture of  salt,  and  that  such  title  should  never  be  parted  with,  the 
salt  springs  of  Onondaga  were  substantially  the  only  springs  in 
the  United  States  at  which  salt  could  be  economically  manufactured. 
There  were  practically  no  salt  mines  known  in  this  State  at  that 
time,  and,  therefore,  a  monopoly  existed,  with  respect  to  the  manu- 
facture of  salt;  but,  as  the  time  went  on,  as  has  been  explained  by 
my  friend,  Governor  Alvord,  other  parts  of  the  country  began  to 
develop  this  industry,  so  that  what  at  one  time  was  a  monopoly 
has  now  ceased  to  be  such.  The  report  of  the  Superintendent  of 
the  Salt  Springs,  which  was  submitted  to  the  Legislature  for  the 
year  1893,  during  its  last  session,  indicates  how  the  salt  business 
in  the  Onondaga  Salt  Springs  Reservation  has  fallen  off.  In  1862 
there  were  manufactured  9,053,000  bushels  of  salt  upon  the  reserva- 
tion. That  was  the  time  when  the  manufacture  had  reached  its 


August  16.]  CONSTITUTIONAL  CONVENTION.  577 

highest  point  and  when  the  monopoly  was  a  valuable  one  to  the 
State;  but  shortly  after  that  the  salt  fields  of  Saginaw  began  to  be 
exploited  and  other  salt  reservations  were  laid  out  in  various  parts 
of  the  Union;  and  since  that  time  there  has  been  a  steady  decrease 
in  the  quantity  of  salt  manufactured,  so  that  now  we  find  that  the 
business  has  reached  almost  the  lowest  ebb  that  it  has  attained  in 
the  history  of  the  reservation.  During  the  year  1893  the  aggregate 
number  of  bushels  of  salt  manufactured  was  3,065,906,  nearly 
6,000,000  bushels  less  of  salt  than  were  manufactured  in  the  year 
1862,  thirty  years  ago.  And  there  has  been  a  steady  decrease  from 
1879  down  to  the  year  1893.  The  revenue  which  the  State  of  New 
York  received  from  this  reservation  when  there  were  9,000,000 
bushels  of  salt  manufactured  was  quite  large,  and  it,  therefore, 
was  a  paying  operation  to  the  State  to  continue  in  the  business 
of  the  manufacture  of  salt;  but  now  the  revenue  is  scarcely  large 
enough  to  pay  the  salaries  of  the  officers  who  are  maintained  by 
the  State  to  take  charge  of  the  reservation.  The  revenue  during 
the  last  year  was  $30,659.07.  The  amount  expended  for  officers 
during  the  same  period  by  the  State  was  $21,347.80,  or  within  $9,000 
of  the  total  amount  realized  by  the  State  from  this  business.  The 
additional  expenditures  made  by  the  State  during  the  same  period 
for  labor,  repairs,  materials  and  new  structures  were  $52,817.63,  or  a 
total  of  disbursements  of  $74,165.43,  netting  to  the  State  a  loss  of 
$44,000  in  this  business.  Now,  this  is  the  history,  not  only  of  one 
year,  but  it  has  been  the  history  of  the  reservation  for  some  years 
past,  and  there  is  no  prospect  of  any  improvement.  On  the  con- 
trary, now  that  it  is  quite  probable  that  the  Wilson  bill,  as  finally 
passed  by  the  Senate,  is  to  become  a  law,  salt  will  be  upon  the 
free  list,  and  the  consequence  will  be  that  there  will  be  even  less 
salt  manufactured  on  the  Onondaga  Reservation  during  the  coming 
years  than  there  has  been  during  the  year  1893,  when,  as  I  have 
said,  the  business  has  practically  been  wiped  out.  Mow.  the  question 
is,  whether  the  State  of  New  York  shall  continue  this  expensive 
machinery,  this  business  which  is  constantly  netting  a  loss,  whether 
the  State  will  not  rather  dispose  of  this  manufacture  of  salt,  go  out 
of  the  manufacturing  business  and  allow  this  land,  which  is  valuable 
and  from  which  a  large  amount  of  revenue  can  be  derived  by  the 
State,  a  large  price  obtained,  whether  the  State  should  not  sell  this 
land.  There  are  900  acres  of  land.  A  large  portion  of  it  is  within 
the  corporate  limits  of  the  city  of  Syracuse.  The  remainder  is  in 
the  immediate  vicinity  of  Syracuse.  The  land  is  valuable  for  manu- 

37 


578  REVISED   RECORD.  [Thursday, 

facturing  purposes  and  for  being  cut  up  into  building  lots,  and  the 
State  can  realize  large  prices  therefor/ 

In  times  past  portions  of  the  reservation  have,  under  the  opera- 
tion of  the  act  of  1874,  been  sold,  and  those  lands  have  been,  at 
auction,  disposed  of  to  the  highest  bidder  and  a  large  revenue 
obtained  by  the  State  from  the  sale  of  those  lands.  But  under  the 
Constitution  it  was  necessary  to  devote  the  money  realized  from 
such  sales  to  the  acquisition  of  additional  lands  so  that  the  total 
quantity  of  land  in  the  reservation  should  never  be  decreased.  Xow, 
if  this  land  is  sold  and  the  money  is  put  into  the  treasury  it  can 
be  devoted  to  other  purposes.  It  may  be  devoted  to  the  purpose 
of  acquiring  lands  in  the  Adirondack  reservation  and  thus  be  used 
for  some  purpose  which  will  be  of  material  welfare  to  the  State 
for  all  time  to  come;  instead  of  having  the  State  engaged  in  a  losing 
operation,  it  can  make  use  of  this  plant  which  it  has  built  up,  make 
use  of  the  money  realized  from  these  lands,  which,  when  they  are 
sold,  can  be  put  to  uses  which  will  be  perpetually  beneficial  to  the 
State.  Xow,  the  substitute  which  I  have  offered  is  in  precisely  the 
language  in  which  the  question  of  the  sale  of  the  salt  springs  was 
presented  to  the  State,  with  the  exception  that  I  have  substituted 
the  word  "  shall "  for  the  word  "  may,"  as  contained  in  the  consti- 
tutional amendment  voted  upon  by  the  people  of  the  State  in  1892. 
As  has  already  been  stated  to  this  Convention,  by  an  accident,  the 
canvassers  of  that  vote  made  a  mistake  in  the  statement  of  the 
result,  so  that  this  amendment,  which  really  was  carried,  was 
declared  to  be  lost.  Time  has  elapsed,  so  that  a  mandamus  would 
not  be  a  remedy,  if  such  remedy  should  exist  under  the  circum- 
stances of  this  case.  And,  therefore,  it  is  believed  to  be  necessary 
to  once  more  go  to  the  people  with  this  proposition,  so  that  they 
may  carry  out  the  wishes  which  they  declared  at  the  polls.  Now, 
the  only  criticism  which  is  made  to  this  proposition  is  that  it  con- 
tains words  which  are  to  the  effect  that  the  State  Legislature  is 
required  to  make  provision  for  the  sale  and  disposal  of  the  lands. 
When  we  consider  the  fact  that  the  State  is  engaged  in  this  losing 
business,  it  is  for  this  Constitutional  Convention  to  say  to  the  Legis- 
lature that  it  shall  make  provision  to  dispose  of  this  property.  The 
Legislature,  in  its  discretion,  may  act  upon  political  consideration. 
It  has  been  pointed  out  here  that  the  Onondaga  Salt  Springs 
Reservation  has  been  a  political  machine,  used  by  both  parties 
during  the  last  fifty  years  and  certainly  during  the  last  twenty-five 
years.  Scandals  have  existed  with  respect  to  it ;  abuses  have  grown 
up ;  there  have  been  at  least  two  proceedings  for  the  removal  of  the 
superintendent  of  the  Salt  Springs  Reservation  upon  charges  of 


August  16.]  CONSTITUTIONAL  CONVENTION.  579 

malfeasance  and  misfeasance  in  office.  In  one  case  the  officer  was 
a  Republican ;  in  the  other  case  the  officer  was  a  Democrat.  In  one 
case  findings  were  made  which  would  have  justified  the  removal  of 
the  officer,  but  the  Governor  never  passed  upon  the  charges  made, 
although  seven  years  have  expired  since  the  argument  was  made 
before  the  Governor,  and  the  decision  is  still  awaited  with  breath- 
less expectation,  and  the  officer  proceeded  against  is  still  in  office. 
It  is,  therefore,  time  that  this  political  machine  shall  be  stricken 
down,  and  it  is  for  the  Constitutional  Convention  to  say  that  it  shall 
be  done.  It  should  not  be  left  to  the  discretion  of  any  Legislature. 

The  next  suggestion  that  is  made,  is  that  this  provision,  as  sub- 
mitted to  the  people  before,  and  the  provision  as  now  proposed, 
suggests  that  the  State  shall  make  just  compensation  to  all  persons 
having  any  right  thereto.  That  is  practically  the  language  which 
was  adopted  by  the  Legislature  in  the  concurrent  resolutions  which 
resulted  in  submission  to  the  people  of  this  proposed  constitutional 
amendment  in  1892.  These  words  do  not  require  the  State  to  pay 
a  dollar  if  there  is  no  legal  right.  But  legal  rights  should  be  pre- 
served; they  should  be  saved;  there  should  be  provision  made  that 
if  these  lands  are  sold,  if  they  are  disposed  of,  if  anybody  has  any 
legal  rights  therein,  such  rights  should  be  compensated  for.  I  am 
not  here  to  say  that  such  rights  exist,  but  they  may  exist.  Claims 
may  be  introduced.  It  is  not  auditing  a  claim  when  we  say  that 
just  compensation  shall  be  made  to  all  persons  having  any  right  in 
the  land.  The  right  must  be  established  first,  and  then  compensa- 
tion should,  of  course,  be  given,  and  that  compensation  is  only  just 
compensation.  The  proper  thing,  therefore,  for  this  Convention 
to  do,  it  seems  to  me,  is  to,  in  the  first  place,  lay  down  the  rule  that 
these  lands  should  be  disposed  of,  and  in  the  second  place,  when 
disposed  of,  provision  should  be  made  regulating  the  giving  of 
compensation. 

Now,  this  is  not  a  new  law  for  this  State.  The  act  of  1874  makes 
adequate  provision  for  just  such  cases  as  this.  The  principle  has 
always  obtained  in  this  State  in  respect  to  the  sale  of  salt  lands,  and 
the  same  provisions  which  are  contained  in  the  act  of  1874  may 
be  re-enacted  with  any  statute  which  may  be  passed  by  the  Legisla- 
ture under  this  proposed  constitutional  provision,  enabling  the  Leg- 
islature to  regulate  the  manner  in  which  the  land  shall  be  sold  and 
in  which  compensation  may  be  adjusted. 

Mr.  C.  B.  McLaughlin  —  Mr.  Chairman,  in  my  opinion,  the 
amendment  proposed  by  Mr.  Brown  to  this  proposed  constitutional 
amendment  should  prevail.  The  substitute  offered  by  Mr.  Marshall, 
together  with  this  proposed  constitutional  amendment,  should  be 


580  REVISED  RECORD.  [Thursday, 

defeated.  The  only  complaint  that  is  made  by  the  gentlemen  inter- 
ested in  this  proposition,  in  reference  to  the  present  Constitution, 
is  that  they  are  not  permitted  to  sell  these  lands.  Now,  it  is  indeed 
a  novel  proposition  that  we  must  go  beyond  the  point  of  permitting 
the  State  to  sell  and  legislate  that  the  damages,  if  there  be  any,  shall 
at  once  be  settled  by  the  State,  when  we  have  once  reached  the  con- 
clusion that  this  section  of  the  Constitution  should  be  amended  by 
abrogating  it,  then  the  gentlemen  have  in  the  Constitution,  as  it 
shall  be  adopted,  if  adopted  at  all,  all  the  remedy  we  need.  I  would 
like  to  have  some  gentleman  that  is  in  favor  of  this  proposed 
amendment  or  of  this  substitute  offered  by  Mr.  Marshall,  tell  this 
Convention  why  it  is  necessary  that  we  should  instruct  the  people 
of  this  State  to  immediately  sell,  when  we  know  not  whether  there 
is  anybody  that  wants  to  buy.  I  would  like  to  have  them  tell  this 
Convention  why  it  is  necessary  to  proceed  to  adjust  damages  before 
we  know  whether  there  are  any  damages  to  adjust.  Now,  Mr.  Chair- 
man, it  seems  to  me  that  when  we  go  beyond  the  point  of  what  Mr. 
Brown  has  asked  in  his  proposed  amendment,  namely,  that  this  sec- 
tion be  abrogated,  we  are  trenching  upon  the  ground  of  legislation, 
we  are  drifting  right  into  that  which  we  every  day  upon  this  floor 
condemn  —  class  legislation.  Now,  if  it  is  proper  to  sell  these  lands, 
abrogate  your  section;  then  they  can  sell  it.  If  there  are  any  dam- 
ages to  adjust,  if  the  State  sells  the  land,  their  remedy  is  there  with- 
out legislating  as  is  proposed  in  this  substitute  or  in  the  proposed 
constitutional  amendment.  It  is  a  very  dangerous  position  for  the 
State  to  take,  and  one  which  we,  sitting  here  as  the  delegates  of  the 
people,  should  hesitate  before  we  take  it.  I  sincerely  hope  that 
this  amendment  proposed  by  Mr.  Brown  will  prevail,  and  that  the 
proposed  amendment  offered  here,  together  with  the  substitute,  will 
be  defeated. 

Mr.  Foote  —  Mr.  Chairman,  will  the  gentleman  allow  me  to  ask  a 
question?  The  last  speaker  referred  to  the  substitute  offered  by 
Mr.  Brown.  I  do  not  find  that  substitute  printed  in  my  file,  and 
I  would  like  to  have  it  read  from  the  desk  of  the  Secretary. 

The  Secretary  read:  Mr.  E.  R.  Brown  proposed  an  amendment, 
"  to  strike  out  all  after  the  word  '  abrogated  '  in  line  one." 

The  Chairman  —  The  Record  seems  to  be  a  little  bit  mixed  here, 
and  the  Chair  will  state  for  the  information  of  the  committee  his 
understanding  of  the  question  as  it  is  now  presented.  As  the  Chair 
understands,  Mr.  Durfee  first  moved  an  amendment,  which  was 
accepted  by  Mr.  Alvord.  Then,  as  I  understand  it,  Mr.  E.  R.  Brown 
moved  an  amendment  to  strike  out  all  after  the  word  "  abrogated," 


August  16.]  CONSTITUTIONAL  CONVENTION.  581 

which,  if  it  prevails,  would  do  away  with  the  amendment  as  accepted 
by  Mr.  Alvord.  Then  Mr.  Marshall  offered  a  substitute  for  the 
whole  matter. 

Mr.  Barbite  —  Mr.  Chairman,  I  am  not  in  favor  of  the  proposed 
amendment  or  of  the  substitute  offered,  but  am  in  favor  of  the 
amendment  offered  by  Mr.  Brown.  I  believe  that  if  the  Convention 
goes  so  far  at  this  time  as  to  place  the  matter  in  such  shape  that  the 
salt  springs  of  this  State  and  the  lands  adjacent  thereto  can  be  sold, 
that  we  have  done  all  that  we  are  justified  in  doing  under  the  facts 
of  the  case.  There  is  no  question  that  since  1795  it  has  been  the 
policy  of  this  State  to  preserve  the  salt  springs  situate  in  Onondaga 
county.  The  records  of  the  superintendent  of  those  springs  show 
us  that  for  a  number  of  years  past  the  State  has  been  conducting  its 
business  at  a  loss,  and  I  do  not  know  why  the  State  should  be  fur- 
ther compelled  to  continue  that  business  and  furnish  water  to  the 
lessees  and  pay  the  additional  expense  out  of  the  State  treasury. 
But  it  seems  to  me  somewhat  peculiar  that  the  gentlemen  who  are  in 
favor  of  this  matter  should  insist  upon  having  this  amendment  in  its 
peculiar  shape.  I  do  not  impugn  the  motives  of  any  delegate  upon 
this  floor.  I  believe  the  gentlemen  from  Onondaga  who  are  press- 
ing this  matter  are  honest  in  their  efforts  and  are  doing  what  they 
believe  to  be  for  the  best  interests  of  the  people  of  the  whole  State; 
but  at  the  same  time,  coming,  as  I  do,  from  a  section  adjacent  to 
Onondaga  county,  I  happen  to  know  that  these  lessees,  these  gentle- 
men who  are  now  interested  in  the  manufacture  of  salt,  are  as  a 
body  urging  upon  this  Convention  the  sale  of  those  lands.  They 
claim  that  il  will  be  for  the  best  interests  of  the  State  if  the  lands  are 
sold;  they  claim  that  they  themselves  are  conducting  their  business 
at  a  loss ;  and  if  that  is  true,  and  if  that  is  the  only  reason  why  they 
desire  this  Convention  to  take  the  action  which  they  have  desired 
us  to  take,  I  do  not  see  why  they  cannot  quit  their  business  and  let 
the  State  do  the  best  that  it  can.  There  is  nothing  in  these  coarse 
salt  leases  which  compels  their  lessees  to  conduct  their  business  or 
manufacture  another  bushel  of  salt.  Now,  they  have  here  in  this 
substitute  a  clause  which  provides  that  the  State  shall  make  just 
compensation  to  all  persons  having  any  rights  therein.  It  is  unneces- 
sary for  me  to  state  to  the  distinguished  delegate  from  Onondaga 
that  neither  this  Convention,  nor  the  people  of  the  State,  can  take 
away  from  those  lessees  any  rights  which  they  have,  without  mak- 
ing compensation  therefor.  I  do  not  believe  in  placing  the  Legisla- 
ture in  a  position  where  it  is  forced  and  compelled,  by  this-  section 
of  the  Constitution,  to  make  a  sale  of  the  salt  lands  without  any 
corresponding  obligation  on  the  part  of  the  lessees. 


582  REVISED   RECORD.  [Thursday, 

I  do  not  believe  in  saying  to  the  Legislature:  "  You  shall  sell  the 
property  of  the  State,"  when  there  is  no  person  to  buy,  and  when 
we  cannot  compel  the  lessees  to  surrender  the  rights  which  they 
have.  We  all  know  how  people  are  apt  to  look  at  their  property 
under  different  circumstances.  The  lessees  come  to  us  to-day  and 
say  that  our  leases  are  not  valuable;  that  they  are  worth  scarcely 
anything  at  all;  but  if  we  have  an  amendment  to  the  Constitution 
which  compels  the  State  to  buy  those  leases,  we  know  very  well  how 
enormously  they  will  increase  in  value.  We  place  the  Legislature 
of  the  State  in  a  position  where  it  cannot  make  a  just  and  a  fair 
bargain  on  behalf  of  the  people.  We  should  not  compel  them  to 
take  any  such  position  as  that. 

Another  fact.  The  report  of  the  superintendent  of  the  reservation 
shows  that  there  is  now  something  like  900  acres  of  land  which  are 
covered  by  these  salt  leases.  That  land  lies  in  immediate  proximity 
to  the  city  of  Syracuse.  I  am  not  certain  but  that  it  is  actually 
within  that  municipal  corporation.  That  land,  if  the  salt  springs 
were  done  away  with,  would  become  enormously  valuable.  Now, 
should  not  the  State  of  New  York,  if  it  has  been  losing  money  dur- 
ing the  past  few  years  upon  the  salt  springs,  be  placed  in  such  a 
position  that  it  can  obtain  the  best  price  possible  for  those  lands 
and  recoup  some  of  its  losses. 

One  of  the  secretaries  of  one  of  the  largest  companies  engaged 
in  the  business  informed  me  that  what  they  proposed  to  do  was  to 
surrender  to  the  State  of  New  York  all  rights  under  the  leases 
which  they  hold,  and,  in  consideration  of  that  surrender,  they 
were  going  to  ask  the  State  to  give  them  the  title  of  all  of  the  lands 
which  they  are  now  occupying.  Now,  that  may  be  a  fair  and  just 
bargain,  and  it  may  not  be.  But  I  say  that  at  the  present  time  this 
Convention  is  not  sufficiently  in  possession  of  the  facts  to  compel 
the  Legislature  to  make  any  such  agreement  as  that.  I  am  in  favor 
of  the  amendment.offered  by  Mr.  Brown,  because  that  does  all  that 
ought  to  be  done  at  the  present  time.  If  section  7  is  simply  wiped 
out,  then  there  is  nothing  to  prevent  the  Legislature  from  keeping 
the  salt  springs,  if  that  is  advisable,  and  to  prevent  them  from  selling 
the  salt  springs,  if  that  is  advisable.  The  State  of  New  York  should 
stand  precisely  in  the  position  of  any  other  vendor.  It  should  have 
the  right  to  sell  its  property  for  the  best  price  that  can  be  obtained 
in  the  market,  and  it  should  not  be  compelled  to  do  anything  more 
than  that.  I  hope  the  amendment  offered  by  Mr.  Brown  will 
prevail. 

Mr.  Crosby  —  Mr.  Chairman,  the  question,  as  I  understand  it,  is 
upon  the  amendment  offered  by  Mr.  Brown,  striking  out  all  after 


August  16.]  CONSTITUTIONAL  CONVENTION.  583 

the  word  "  abrogated,"  so  that  the  provision  of  section  7  of  article 
7  of  the  Constitution,  which  prohibits  the  sale  of  the  salt  springs, 
will  be  abrogated  and  revoked.  I  am,  sir,  heartily  in  favor  of  the 
proposed  amendment.  When  the  proposition  to  compel  the  sale 
of  the  salt  springs,  containing  a  mandatory  direction  requiring  the 
Legislature  to  provide  for  such  sale,  came  before  this  Convention, 
it  was  conceded  by  all,  including  the  gentleman  who  proposed  ihe 
amendment,  that  it  was  necessary,  in  order  to  act  intelligently  upon 
the  matter,  that  information  should  be  required,  and  furnished  by 
those  presumed  to  be  in  possession  of  knowledge,  relating  to  the 
property  of  the  State,  known  as  the  Onondaga  salt  springs.  A 
resolution  was  promptly  adopted  by  the  Convention,  calling  upon 
the  Secretary  of  State,  who,  by  virtue  of  his  position  as  secretary 
of  the  land  office,  was  presumed  to  have  in  the  records  in  his  pos- 
session information  which  would  give  us  the  proper  advice.  A 
report  came  from  that  office  disclosing  the  fact  that  around  the  body 
of  water  known  as  Onondaga  Lake,  for  three  miles  in  extent,  the 
State  of  New  York  owns  and  is  in  possession  of,  or  is  presumed  to 
be  in  possession  of,  the  property  known  as  the  Onondaga  salt  springs, 
which  property  was  granted  by  an  independent  nation,  to  wit,  the 
Onondaga  Indians,  to  the  people  of  the  State  of  New  York,  under 
the  express  restriction  in  the  grant,  "  that  the  same  should  forever 
remain  for  the  common  benefit  of  the  people  of  the  State  of  New 
York  and  of  the  Onondagas  and  their  posterity,  for  the  purpose  of 
making  salt,  and  should  not  be  granted  or  in  any  way  disposed  of 
for  other  purposes." 

I  suppose,  Mr.  Chairman,  that  the  solemn  agreement  made  with 
those  Indians  who,  partly  civilized,  are  living  near  the  lands  granted, 
is  of  minor  importance  to  the  people  of  the  State  of  New  York,  if 
they  adopt  the  rule  that  is  generally  applied  to  contracts  and  agree- 
ments made  with  the  aborigines  of  America;  but  there  stands  the 
prohibition  that  the  salt  springs  shall  not  be  granted  or  disposed 
of,  but  shall  be  reserved  for  the  use  of  the  people  and  the  Onondagas. 

I  know  not,  sir,  what  scheme  may  be  underlying  this  matter,  but 
the  facts  exist  that  the  great  State  of  New  York  has  now  control 
of  the  salt  springs  of  Onondaga;  that  the  product  of  those  salt 
springs  is  a  necessity  for  every  family  in  this  land;  that  the  property 
lying  there,  although  claimed  to  be  unprofitable  and  unproductive 
now,  is  a  barrier  against,  and  a  preventive  of  any  combination, 
trust  or  organization,  which  may  easily  be  made,  to  increase  the 
price  of  this  necessary  commodity,  and  hence  it  becomes  a  serious 
question  whether  or  not  we  should  adopt  and  send  to  the  people  a 
proposition  to  release  or  sell  all  the  rights  of  the  State  and  to  remove 


584  REVISED  RECORD.  [Thursday, 

the  restriction  upon  any  combination  which  may  be  formed  to 
increase  the  price  of  that  product. 

We  are  informed  that  there  are  certain  claims  to  be  made  by  the 
occupants  of  the  lands  that  must  be  adjusted;  certain  rights  which 
have  been  acquired  under  the  leases  heretofore  granted  to  them  by 
the  land  office  which  must  be  ascertained,  and  vast  demands,  as 
appears  upon  the  face  of  the  report  showing  the  extent  of  the  terri- 
tory, would  undoubtedly  be  made  against  the  people  of  the  State. 
The  proposed  substitute  offered  by  Mr.  Marshall  will  not  only  com- 
pel the  sale  of  the  salt  springs,  but  will  commit  the  people  of  the 
State  of  New  York  to  the  admission  that  rights  of  property  are 
vested  in  the  occupants,  and  that  the  State  must  pay  for  the  improve- 
ments or  buildings  that  have  been  erected  and  the  machinery  that 
has  been  used  in  carrying  on  the  business  of  the  tenants  of  the 
State. 

By  analyzing  the  report,  which  does  not  throw  light  upon  the 
question  as  it  should  give  it,  it  appears  that  there  are  900  acres  of 
what  is  known  as  coarse  salt  land.  By  the  statute  of  the  State, 
regulating  the  salt  springs  management,  the  salt  lands  for  the 
manufacturing  of  coarse  salt  were  to  be  divided  into  ten-acre  lots. 
Although  the  report  gives  the  number  of  corporations  and  individu- 
als —  I  think,  somewhere  about  thirty  —  interested  in  the  manufac- 
ture of  salt,  one  can  discover,  when  considering  the  subdivisions  of 
the  900  acres  of  coarse  salt  lands  into  ten-acre  lots,  in  connection 
with  the  claims  to  be  made  by  the  occupants  under  their  leases, 
the  great  magnitude  of  the  obligations  we  are  asked  to  urge  the 
people  to  adopt,  adjust  and  pay. 

Regarding  the  fine  salt  lands,  no  information  as  to  the  number  of 
acres  or  as  to  the  number  of  claimants,  has  been  given,  and  there 
are  other  important  subjects  that  are  not  mentioned  either  by  the 
Secretary  of  State  or  the  superintendent  of  the  salt  springs.  When 
we  asked  the  secretary  of  the  land  office  in  regard  to  the  acreage 
under  lease  and  the  unoccupied  lands,  he  reported  that  the  superin- 
tendent of  the  salt  springs  could  give  that  information;  and  when 
we  asked  the  superintendent  of  the  salt  springs  for  information 
which  was  stated  to  be  in  his  possession,  he  replied  that  such  infor- 
mation was  in  the  land  office.  We  do  not  know  the  number  of 
acres  there  are  with  the  buildings,  erections  and  improvements 
thereon  that  have  been  put  up  by  the  tenants  or  occupants;  we  are 
unable  to  ascertain  the  extent  of,  or  the  number  of,  claims  that 
would  be  presented  from  the  fine  salt  lands.  Outside  investigation 
discloses  that  a  large  number  of  the  acres  of  the  so-called  "  Onon- 
daga  Salt  Spring  Lands  "  are  lying  vacant  and  unoccupied,  and 


August  16.]  CONSTITUTIONAL  CONVENTION.  585 

that  other  portions  are  leased  under  leases  for  agricultural  purposes. 
We  are  now  asked,  without  any  knowledge  of  the  condition  or 
extent  of  the  numerous  claimants,  to  require  the  Legislature  of  the 
State  of  New  York  to  provide  for  the  sale  of  those  lands  and  the 
payment  of  every  dollar  which  may  be  claimed  or  established  by 
any  occupant. 

Further  investigation  of  the  matter  —  and  I  trust  the  gentlemen 
composing  this  Convention  have  investigated  it  —  discloses  that, 
although  the  provisions  of  the  Constitution  now  are  that  there  may 
be  an  exchange  of  lands  for  other  lands  for  the  convenience  of  the 
business,  but  that  the  acreage  of  the  salt  lands  must  not  be  dimin- 
ished, hundreds  of  acres  have  been  sold  under  the  pretense  of  mak- 
ing it  more  convenient  for  the  carrying  on  of  the  salt  manufacturing 
business,  and  that  a  large  portion  of  the  city  of  Syracuse  is  now 
located  upon  lands  that  have  been  sold  under  that  pretended  claim. 
Public  buildings  of  the  city,  its  business  places,  its  residences,  are 
located  on  the  property.  And  it  is  impossible  to  ascertain  from  any 
reports  or  information  given,  any  instruction  as  to  whether  there 
have  been  an  equal  number  of  acres  secured  for  the  purposes  of  the 
State  to  carry  on  the  salt  business,  or  as  to  what  has  been  done  with 
the  proceeds  of  the  sale  of  the  same.  Still  further,  Mr.  Chairman, 
an  entirely  independent  salt  business,  in  which  the  people  of  the 
State  have  been  and  now  are  interested,  known  as  ''  The  Montezuma 
Salt  Springs,"  was  carried  on  until  the  year  1892,  by  a  separate 
organization,  and  under  an  independent  supervision.  Not  a  word  of 
information  has  been  given  us  in  regard  to  the  condition  of  the 
Montezuma  Salt  Springs  property,  although,  by  virtue  of  the  act  of 
the  Legislature,  passed  in  1892,  the  general  supervision  of  that 
property  was  placed  in  the  hands  of  the  superintendent  of  the  Onon- 
daga  salt  springs. 

Mr.  Marshall  —  I  would  like  to  ask  the  gentleman  a  question. 

The  Chairman  —  Will  the  gentleman  give  way? 

Mr.  Crosby  —  Certainly. 

Mr.  Marshall  —  Is  there  any  mention  in  the  Constitution  of  this 
State  with  respect  to  the  Salt  Springs  Reservation? 

Mr.  Crosby  —  Under  the  statutes  of  the  State  of  New  York,  the 
Montezuma  Salt  Springs  are  consolidated  with  the  Onondaga  Salt 
Springs,  and  they  are  named  and  designated  now  as  "The  Onondaga 
Salt  Springs." 

Mr.  Marshall  —  And  is  it  not  a  part  of  the  Onondaga  Salt  Springs 
which  is  referred  to  in  the  Constitution  of  this  State? 

Mr.  Crosbv  —  I  am  unable  to  state  from  anv  information  we  can 


586  REVISED   RECORD.  [Thursday, 

procure  from  anyone  that  should  produce  such  information  for  us. 
If  the  gentleman  has  knowledge  as  to  whether  or  not  the  Monte- 
zuma  Salt  Springs  would  be  covered  by  the  proposed  amendment  as 
a  citizen  of  Onondaga  county,  familiar  with  these  matters,  and  inter- 
ested in  the  proposed  amendment,  I  trust  he  will  give  it  to  this 
Convention.  More  than  this,  Mr.  Chairman,  great  thoroughfares, 
the  New  York  Central  Railroad,  the  West  Shore  Railroad,  and  other 
corporations  have  found  their  way  across  this  State  property.  Under 
some  machinery  that  has  not -been  disclosed,  hundreds  of  acres  of 
said  land,  that  were  supposed  to  be  protected  by  the  provisions  of 
this  Constitution,  are  occupied  and  claimed  by  corporations  and 
individuals,  by  virtue  of  grants  from  the  land  office,  in  spite  of  such 
prohibitory  provision. 

In  view  of  these  facts,  if  it  be  deemed  advisable  to  sell  the  interest 
of  the  State  in  the  property  in  question;  if  it  is  advisable  to  disregard 
the  treaty  made  for  the  protection  of  the  people,  it  appears  that  the 
proper  body  to  make  provision  for  such  sale  and  to  regulate  the 
same,  to  the  end  that  the  interests  of  the  State  may  be  ascertained 
and  protected,  is  the  Legislature  of  the  State  of  New  York. 

Without  information  as  to  the  extent  of  the  property  and  the 
present  rights  of  the  State  thereto;  with  the  statement  made  by  the 
secretary  of  the  land  office  that  it  will  require  surveys  and  maps 
and  a  large  expenditure  of  money  and  time  not  at  their  disposal, 
to  obtain  such  information;  without  means  provided  by  the  Legis- 
lature of  the  State  at  the  disposal  of  this  Convention  to  defray  the 
expense  of  making  such  investigation  to  procure  the  proper  infor- 
mation, we  are  asked  to  require  the  people  to  release  all  rights  to 
the  property  in  question,  to  assume  obligations  of  great  and 
unknown  amount  and  to  subject  other  proposed  amendments  to 
the  danger  of  defeat  by  submitting  a  proposition  of  such  a  question- 
able character. 

Mr.  Chairman,  the  Legislature  of  this  State  will  have  ample 
power  in  the  premises  if  we  remove  the  constitutional  restriction 
upon  the  sale  by  adopting  the  amendment  proposed  by  Mr.  Brown. 
It  has  the  power  to  create  a  committee  of  investigation  to  ascertain 
the  existing  rights  of  the  people  and  the  occupants,  and,  if  it  shall 
finallv  determine  that  a  sale  of  the  property  will  be  for  the  best 
interests  of  the  people  of  the  State,  to  prescribe  the  proper  restric- 
tions, conditions  and  requirements  for  the  protection  of  the  people's 
interests.  If  any  parcel  of  the  property  shall  be  found  to  be  of  no 
value,  as  claimed  by  the  gentlemen  who  favor  the  proposed  sale,  it 
has  the  power  to  arrange  with  the  claimants  of  such  property  or 


August  *i6.]  CONSTITUTIONAL  CONVENTION.  587 

interests  so  that  a  release  may  be  made  to  them  upon  their  releasing 
any  claim  or  demand  which  they  may  make  against  the  State. 

i  am  heartily  in  favor  of  abrogating  the  prohibitory  provision  of 
the  Constitution  and  thereby  giving  to  the  Legislature  of  the  State 
of  New  York,  which  has  the  time  to  make  the  inquiry,  the  power 
to  incur  the  expense,  and  the  wisdom  and  honesty  to  act,  the  power 
to  clothe  it  with  the  duty  to  determine  whether  or  not  the  rights 
of  the  people  are  so  important  that  they  shall  be  retained  forever, 
according  to  the  terms  of  the  treaty  made  when  the  people  acquired 
such  land,  or  whether  the  property  shall  be  sold  under  the  directions 
of  the  land  office  pursuant  to  legislative  enactment. 

Mr.  Griswold  —  Mr.  Chairman,  just  but  a  few  words  I  propose  to 
say  on  the  subject  under  consideration.  The  proposed  amendment 
of  the  Constitution  embraces  two  classes  of  matters  that  are  to  be 
disposed  of  by  this  provision.  Now,  if  there  is  a  simple  repealing 
of  the  constitutional  provision,  which  will  allow  the  sale  of  these 
salt  springs  and  the  settlement  of  all  matters  pertaining  thereto,  that, 
it  would  seem  to  me,  would  be  reasonable  and  safe  for  this  Conven- 
tion to  do;  but  when  you  add  to  it  special  legislation,  and  make  it 
mandatory  that  the  Legislature  or  any  officer  of  the  State  shall  not 
only  dispose  of  the  rights  and  properties  of  the  State  in  these  salt 
springs,  and,  further,  that  they  shall  settle  all  the  claims  against  the 
State,  and  thus  make  it  mandatory,  then  we  are  dealing  with  danger- 
ous legislation,  and  without  sufficient  information  by  which  we  can 
deal  safely  with  the  subject.  Now,  sir,  here  are  large  properties 
which  cost  the  State  immense  sums  of  money,  and,  I  believe,  are 
very  valuable  to  the  State  at  the  present  time.  Of  course,  the  rights 
of  the  State  and  the  property  of  the  State  can  easily  be  sold,  but 
when  you  come  to  the  question  of  claims  against  the  State  (and  it 
is  said  here  there  are  a  great  many  contracts  that  are  perpetual  as 
against  the  State),  you  make  it  mandatory  upon  the  Legislature  or 
any  officer  that  they  shall  be  settled  and  disposed  of.  Xow,  then 
there  are  claims  against  the  State.  How  are  you  going  to  settle 
them?  You  don't  know  the  amount,  the  number;  and  I  would  pro- 
pose a  resolution  for  a  special  committee,  with  power  to  send  for 
persons  and  papers,  to  ascertain  the  value  of  this  property,  its  nature 
and  character,  and  the  nature  and  amount  of  these  claims;  or,  if  it 
is  thought  best  by  the  Convention,  to  simply  abrogate  that  section, 
and  leave  it  to  the  Legislature  to  inquire  about  all  these  matters  and 
to  act  judiciously  about  it,  it  can  be  sent  to  a  special  committee, 
and  they  can  ascertain  what  these  contracts  are.  It  seems  to  me 
that  the  only  safe  course  for  this  Convention  to  pursue  is  simply  to 
repeal  the  prohibitory  provision  of  the  Constitution  so  that  the 


588  REVISED  RECORD.  [Thursday, 

Legislature  may  sell  these  lands  and  give  the  Legislature  power  to 
settle  these  claims,  and  they  may  settle  them  or  not  settle  them. 
How  are  you  going  to  settle  them?  There  stand  the  claimants,  and 
all  there  is  about  it,  they  will  stand  out.  By  this  additional  amend- 
ment you  have  got  a  mandatory  provision  that  they  shall  be  settled, 
and  suppose  they  stand  out  about  them;  it  leaves  the  State  to  be 
robbed  by  these  claimants.  I  am,  therefore,  in  favor  of  the  amend- 
ment of  Mr.  Brown's,  which  strikes  out  all  of  those  provisions  and 
leaves  the  Legislature  entirely  free  after  the  prohibition  is  abrogated. 

Mr.  Dean  —  Mr.  Chairman,  I  am  not  entirely  satisfied  that  the 
State  of  New  York  is  prepared  to-day  to  sell  these  salt  springs.  We 
have  been  told  here  that  salt  springs  are  to  be  found  in  all  parts  of 
the  United  States,  and  that,  therefore,  a  monopoly  is  absolutely 
impossible.  The  same  is  true  of  kerosene  oil,  of  petroleum  and  of 
coal,  and  yet  we  have  monopolies  in  this  country  yhich  absolutely 
control  those  two  great  products.  The  State  of  New  York,  so  long 
as  it  owns  those  salt  springs,  stands  in  the  way  of  any  combination 
to  force  up  the  price  of  salt  in  this  country.  More  than  that,  the 
State  of  New  York  has,  as  we  are  told,  nine  hundred  acres  of  valu- 
able land  near  Syracuse.  The  State  pays  no  taxes  upon  this  valu- 
able property.  It  is  a  good  investment,  and,  I  believe,  we  are  in 
just  as  good  shape  to  own  real  estate  as  some  of  the  gentlemen 
who  are  running  salt  springs  in  and  around  Syracuse.  In  1882, 
there  was  consummated  in  this  State  one  of  the  most  gigantic  steals 
that  was  ever  perpetrated  in  the  name  of  legislation.  Some  of  the 
gentlemen  who  are  actively  pushing  the  passage  of  this  proposed 
amendment  engineered  that  same  scheme.  I  refer  to  the  sale  of 
the  Genesee  Valley  canal.  In  1882  the  Constitution  of  the  State 
was  amended  so  as  to  take  the  Genesee  Valley  canal  out  of  the  pro- 
tection of  the  Constitution,  and  in  that  year  that  property,  a  graded 
canal  from  the  city  of  Rochester  to  Olean,  in  Cattaraugus  county, 
embracing  something  like  eighty  miles,  was  sold  for  $500.  The 
cut  stone  alone  in  the  locks  along  that  canal  was  worth  many  times 
the  purchase-price  of  that  property.  Mr.  Chairman,  I  am  opposed 
to  any  scheme  which  forces  the  State,  or  even  allows  the  State,  to  sell 
this  valuable  property  under  the  sanction  of  this  Convention. 

Mr.  Moore  —  Mr.  President,  I  am  opposed  to  this  amendment 
in  toto.  I  believe  that  the  State  of  New  York  is  as  able  to  hold 
lands  as  any  other  real  estate  owner,  and  were  it  not  for  the  honor- 
able gentleman  (for  whom  I  have  the  greatest  respect,  and  whose 
name  is  at  the  head  of  this  amendment),  I  should  be  very  much  dis- 
posed to  characterize  the  attempt  to  carry  this  proposed  amendment 
as  a  job. 


August  16.]  CONSTITUTIONAL  CONVENTION.  589 

I  do  not  dispute  that  the  State  of  New  York  does  not  make  any- 
thing in  manufacturing  salt,  but  I  have  not  heard  any  argument 
why  the  State  of  New  York  should  sell  its  valuable  real  estate,  or  at 
least  why  an  amendment  should  be  passed  by  this  Convention  to 
be  put  into  the  Constitution  that  will  literally  force  the  sale  of  these 
lands  and  put  them  into  the  hands  of  speculators,  who  propose  to 
make  a  good  big  job  out  of  it.  There  is  a  clause  in  the  inside  of  it. 
Read,  Mr.  Chairman,  and  see  the  acuteness,  the  business  acuteness, 
which  produced  these  two  lines.  It  presumed  that  there  were 
claims  against  the  State  on  account  of  the  land  which  is  proposed 
to  be  sold.  I  am  not  familiar  with  the  salt  business  of  the  State 
enough  to  say  how  much  the  State  loses  every  year  in  operating 
these  works,  but  I  am  familiar  enough,  from  these  two  reports  that 
have  been  submitted  here  in  reference  to  the  salt  springs,  to  know 
that  the  State  has  valuable  property  there,  and  I  am  disposed  to 
continue  it  under  the  protection  of  the  provisions  of  artick  7  of  the 
Constitution.  Therefore,  I  hope  that  neither  the  amendment  or 
the  proposed  amendment  will  be  adopted,  but  that  this  Convention 
will  stand  and  keep  article  7  in  the  Constitution  and  let  the  State 
of  New  York  be  a  real  estate  owner  of  valuable  lands,  selling  them 
at  such  other  times  as  proper  information  can  be  obtained  by  the 
Legislature  in  reference  to  these  different  leases  and  grants  and  con- 
veyances, which  are  now  located  in  the  city  of  Syracuse,  and  upon 
which  there  are  buildings  of  great  value.  It  appears  from  the 
reports  that  neither  the  superintendent  of  the  salt  springs  nor  the 
Secretary  of  State  has  been  able  to  ascertain  what  has  been  done 
with  some  valuable  pieces  of  land.  Mr.  Chairman,  I  am,  therefore, 
opposed  to  the  amendment  and  all  the  amendments  offered  to  it. 

Mr.  C.  A.  Fuller  —  Mr.  Chairman,  in  the  year  1888  I  first  became 
somewhat  acquainted  with  this  question.  That  year  Senator  Van 
Gorder  was  the  member  of  Assembly  from  Wyoming  county.  In 
that  Legislature  he  initiated  the  measure  for  the  constitutional  pro- 
vision. I  forget  just  what  the  terms  of  it  were,  but  the  purport  of 
it,  at  least,  was  that  the  State  might  discontinue  the  business  of 
making  salt.  I  have  forgotten  whether  that  provision  provided  for 
the  sale  of  the  land  or  not;  but,  being  personally  acquainted  and 
familiar  with  Mr.  Van  Gorder,  he  explained  to  me  fully  his  side  of 
this  proposition.  At  that  time,  I  think,  the  solid  delegation  from 
Onondaga  county  was  against  the  proposition,  and  I  suppose  very 
likely  the  opposition  arose  from  considerations  that  were  intimated 
by  Mr.  Alvord,  when  he  said  that  this  had  become  a  political  matter 
by  which  the  employes  were  hired  and  discharged  by  one  political 
party  or  another  as  they  came  in  or  went  out  of  office.  But 


590  REVISED   RECORD.  [Thursday, 

time  has  gone  on,  and  it  has  been  seen  by  the  Onondaga  people  that 
it  was  not  expedient  and  proper  to  continue  this  kind  of  business. 
Being  able  to  produce  in  other  localities  so  much  cheaper  than  at 
Syracuse,  making  the  State  do  the  work  of  the  salt  makers  at  a 
great  loss,  and  to  the  evident  detriment  of  those  engaged  in  a  like 
production  in  other  places,  it  seems  to  me,  as  I  think  it  does  to  most 
of  the  members  of  this  Convention,  that  it  is  a  very  wise  thing  to 
do  away  in  some  way  with  this  prihibition  against  the  Legislature 
selling  or  disposing  of  the  salt  springs  belonging  to  the  State. 

Now,  if  it  should  be  that  there  is  underlying  these  proposed 
amendments,  introduced  by  the  Onondaga  gentleman,  any  scheme 
to  be  worked  for  the  individual  advancement  of  any  person,  then,  of 
course,  this  Convention  ought  to  eliminate  that  possibility  and  put 
this  matter  upon  a  strictly  business  basis.  I  have  carefully  as  I 
could  read  the  proposition  of  Mr.  Alvord,  and  I  cannot  spell  out 
of  it  any  concealed  plan  or  job.  It  seems  to  me  that  to  take  that 
position  you  would  have  to  assume  that  the  Legislature  would  be 
in  connivance  with  this  scheme  and  would  make  laws  sufficient  to 
carry  out  any  piece  of  jobbery,  because  this  amendment  provides 
that  the  Legislature  shall  as  soon  as  may  be  provided  by  law,  and 
under  the  direction  of  the  commissioners  of  the  land  office,  proceed 
with  the  equitable  adjustment  and  settlement  of  all  lands  set  apart 
for  the  use  of  salt  springs,  or  erections  thereon,  whether  such  lands 
have  been  held  by  lease  or  otherwise,  and  for  the  absolute  sale  and 
acquisition  in  such  way  as  shall  be  proper  in  respect  to  the  rights 
and  interests  of  the  State.  Now,  it  seems  to  me,  that  that  reads  all 
right.  I  do  not  see  that  it  assumes  that  the  Stae  is  obligated  to 
anyone;  that  it  assumes  that  anyone  has  claims  to  be  settled  and 
paid.  If  there  existed  claims,  of  course,  the  Convention  cannot 
abrogate  those  claims.  They  are  good  for  what  they  are  worth. 
I  am  not  particular  as  to  what  particular  scheme,  what  particular 
proposition  or  amendment  shall  be  carried  out,  but  it  does  seem  to 
me  that  the  time  has  come  when  the  State  of  New  York  may  sell 
its  lands  located  there  when  it  sees  fit  to  do  so.  So  I  hope  that  some 
of  these  plans  to  accomplish  this  object  will  prevail. 

Mr.  ^Powell  —  Mr.  Chairman,  will  the  gentleman  from  the  Twenty- 
second,  Mr.  Marshall,  allow  me  to  ask  him  a  few  questions  relative 
to  this  matter?  Can  the  gentleman  give  us  any  idea  of  the  amount 
of  damages  that  would  be  claimed  by  these  lessees  from  the  State 
in  the  event  of  the  immediate  sale  of  these  lands? 

Mr.  Marshall  —  I  have  not  the  remotest  idea,  but  for  fear  that 
anybody  might  think  that  this  language  which  has  been  proposed 
in  the  substitute  is  to  cover  any  scheme,  or  any  covert  idea  of 


August  16.]  CONSTITUTIONAL  CONVENTION.  591 

getting  out  of  the  State  money  which  should  not  be  taken  out  of  its 
treasury,  I  am  perfectly  willing  to  strike  those  words  from  the  sub- 
stitute, and  allow  these  people,  if  they  have  any  claims  or  any  rights, 
to  get  their  compensation  under  the  provisions  of  the  Constitution, 
which  are  to  the  effect  that  private  property  shall  not  be  taken  for 
public  use  without  just  compensation.  The  language  is  merely  the 
language  of  the  Constitution  that  is  put  into  the  proposed  amend- 
ment that  was  voted  upon  by  the  people  in  1892;  and,  therefore,  the 
people  having  acted  upon  this  language,  it  was  thought  prudent, 
for  the  purpose  of  saving  time  in  this  Convention,  to  adopt  the 
phraseology  upon  which  the  people  themselves  had  passed.  That 
is  the  only  object. 

Mr.  Powell  —  I  suppose  the  gentleman  will  admit  that  the  majority 
of  the  people,  who  voted  on  that  amendment,  knew  just  as  little  about 
the  salt  springs  as  I  do;  practically  nothing  at  all.  Therefore,  their 
judgment  is  worth  nothing. 

Mr.  Marshall  —  Two  Legislatures  had  passed  upon  the  question 
and  had  given  the  matter  careful  study;  but,  as  I  say,  I  am  willing 
to  strike  out  the  language  which  has  been  referred  to. 

Mr.  Powell  —  Will  the  gentleman  allow  me  to  ask  him  another 
question,  also?  The  production,  as  I  understand,  from  the  address 
of  Mr.  Marshall,  of  salt  on  this  State  land,  has  been  largely  dimin- 
ished, and  there  has  been  a  very  rapid  diminution  in  the  yield  for 
several  years 

Mr.  Marshall  —  There  has. 

Mr.  Powell  —  Has  there  been  a  corresponding  diminution  of  the 
production  of  salt  on  adjacent  lands  owned  by  private  individuals  or 
corporations? 

Mr.  Marshall  —  There  are  no  such  lands  in  the  Onondaga 
reservation. 

Mr.  Powell  —  Has  there  been,  then,  a  similar  diminution  with 
regard  to  other  salt  lands  in  the  State? 

Mr.  Marshall  —  There  has  not.  There  has  been  a  corresponding 
increase,  at  Warsaw  and  elsewhere,  on  private  lands,  owned  by 
private  manufacturers. 

Mr.  Powell  —  Will  the  gentleman  also  allow  me  to  ask  him  this 
question  — 

The  Chairman  —  The  debate  must  proceed  in  order.  This  is 
entirely  out  of  order,  this  catechising  a  member. 

Mr.  Powell  —  I  was  simply  asking  for  information. 

The  Chairman  —  It  is  entirelv  out  of  order.     If  Mr.  Powell  will 


592  REVISED   RECORD.  [Thursday, 

ask  a  list  of  questions  to  Mr.  Marshall,  he  will  be  permitted  to 
reply. 

Mr.  Powell  —  Mr.  Chairman,  through  you,  then,  I  would  like  to 
ask  one  more  question.  Has  the  gentleman  any  conception  of  an 
idea  of  how  much  can  be  realized  from  these  lands  if  they  are  imme- 
diately sold  under  and  pursuant  to  the  action  of  this  proposed 
amendment? 

Mr.  Marshall  —  I  have  no  accurate  notion  on  the  subject.  I  can 
only  give  you  my  own  opinion,  and  that  is  that  the  State  can  realize 
from  these  lands  a  sum  of  not  less  than  half  a  million  of  dollars, 
and  perhaps  more.  That  is  my  personal  opinion  on  the  subject, 
over  and  above  all  damages  which  may  have  to  be  paid  to  anybody 
under  the  existing  provisions  of  the  Constitution. 

Mr.  Powell  —  Mr.  Chairman,  I  only  desire,  after  gaining  this 
information,  to  say  one  or  two  words.  What  is  proposed  by  this 
contemplated  amendment  is  to  sell  lands  without  having  had  any 
offer  or  any  appraisement  made  of  them  by  persons  who  are  familiar 
with  the  value  of  lands  in  that  vicinity,  and  undertaking  to  sell  these 
lands  without  knowing  how  much  they  will  bring  in  the  market, 
and  we  propose,  at  the  same  time,  to  place  a  large  number  of  claims 
for  damages  in  position  to  be  collected  without  having  any  idea  of 
how  much  the  claims  for  damages  will  be.  As  the  gentleman  has 
already  characterized  it,  it  seems  to  me  that  we  are  walking  in  the 
darkness,  and  we  are  in  the  condition  of  those  described  as  "  the 
blind  leading  the  blind,"  and  that  kind  of  leading  in  the  darkness 
can  only  lead  to  disaster.  There  are  only  two  reasons  given  why 
we  should  sell  these  lands.  One  is  that  we  are  now  working  them 
at  a  loss  of  $44,000  a  year.  With  the  tendency  which  exists  in  mod- 
ern times  towards  trusts  and  monopolies,  who  knows  that  inside  of 
ten  years  these  very  lands  may  save  to  the  people  of  the  State  of 
New  York  countless  millions  of  dollars.  Certainly  there  is  a  possi- 
bility of  their  being  of  that  value  to  the  people  of  the  State. 

The  only  other  suggestion  as  to  why  we  should  sell  them  is 
because  there  has  been  .scandal  arising  in  connection  with  these 
lands.  I  am  very  much  afraid,  as  has  already  been  suggested  by 
other  gentlemen  in  this  Convention,  that  we  shall  simply  be  laying 
aside  trivial  scandal  to  bring  ourselves  face  to  face  with  enormous 
scandal.  Are  we  in  this  Convention  to  adopt  the  theory  that 
wherever  a  scandal  arises  in  connection  with  State  property,  we 
shall  sell  it  at  once?  Then,  sir,  what  shall  we  do  with  this  very 
building  in  which  this  Convention  is  assembled?  Have  there  been 
no  scandals  in  connection  with  this  building?  Let  us  here  in  this 
Convention,  because  there  has  been  scandal  in  connection  with  the 


August  16.]  CONSTITUTIONAL  CONVENTION.  593 

State  capitol,  pass  an  amendment  that  the  Legislature  must  sell 
this  building  and  the  ground  whereon  it  stands,  as  soon  as  the 
people  can  give  them  power.  History  demonstrates  over  and  over 
again  that  there  is  on  the  part  of  States  a  tendency,  altogether  too 
prevalent,  to  dispose  of  lands  which  belong  to  the  States.  Our 
national  government  has  scandalized  itself  by  the  ease  with  which 
it  has  parted  with  public  lands.  Our  own  State  has  suffered  in  the 
same  manner,  and,  for  one,  I  protest,  not  only  against  an  amend- 
ment which  compels  the  sale  of  these  lands,  but  I  protest  against 
giving  the  Legislature  power  to  dispose  of  them.  They  belong  to 
the  people  of  the  State.  The  people  of  the  State  can  afford  to  own 
them.  So  I  say,  let  us  allow  our  present  Constitution  to  stand 
exactly  as  it  is  in  respect  to  these  salt  springs. 

Mr.  Mulqueen  —  Mr.  Chairman,  I  regret  exceedingly  to  state 
that,  although  a  member  of  the  Committee  on  Salt  Springs,  I  know 
absolutely  nothing  about  the  subject  under  consideration.  It  was 
a  great  surprise  to  me  that  I  was  placed  upon  this  committee,  and  I 
had  intended,  as  a  member,  to  gather  as  much  information  as  possi- 
ble. But  one  proposition  was  sent  to  this  committee,  and  I  was 
notified  of  but  one  meeting.  This  proposition  was  proposed  as  an 
amendment  by  the  chairman  of  that  committee,  and  after  that  first 
meeting,  it  seems  there  were  five  members  present  who  voted  in 
favor.  I  presume  that  the  five  members  of  the  committee  know  all 
about  it.  I  do  not  know  anything  about  it.  I  am  sorry  that  the 
chairman  of  the  committee  did  notify  the  members  of  the  committee 
that  upon  a  day  certain  a  vote  would  be  taken  in  favor  or  rejection 
of  his  own  proposition.  Now,  Mr.  Chairman,  in  view  of  the  fact 
that  some  gentlemen  here  have  openly  charged  that  there  is  some- 
thing in  this  proposed  amendment  which  I  know  nothing  of,  I  would 
like  to  ask  the  Convention  to  grant  me  permission  to  be  recorded 
on  the  date  of  this  report  as  dissenting  from  that  report.  On  July 
eleventh  the  chairman  of  the  committee,  according  to  the  Record, 
reported  in  favor  of  the  passage  of  the  same,  with  some  amendments, 
which  report  was  agreed  to,  and  said  proposition  committed  to  the 
Committee  of  the  Whole.  I  simply  ask  in  justice  to  myself,  as  a 
member  of  that  committee,  having  no  knowledge  of  the  subject,  to 
be  recorded  as  dissenting  from  the  report  of  the  committee. 

The  Chairman  —  That  motion  is  not  in  order  in  the  Committee 
of  the  Whole.  You  must  make  the  motion  in  the  Convention. 

Mr.  Alvord  —  Mr.  Chairman,  in  answer  to  the  gentleman  who  has 
just  taken  his  seat,  I  will  say  that  on  four  several  occasions  instruc- 
38 


594  REVISED   RECORD.  [Thursday, 

tions  were  given  to  the  clerk  of  the  committee  to  notify  each  one  of 
the  members  of  the  committee  that  there  would  be  upon  a  subse- 
quent day  named  a  meeting  of  the  committee.  The  clerk  reported 
to  the  chairman  that  he  had  performed  that  duty.  It  was  after  a 
great  deal  of  hard  work  that  I  was  enabled  out  of  the  committee  of 
seven  to  finally  get  five  members  together  of  that  committee.  That 
is  my  answer  to  the  assertion  of  the  gentleman  from  New  York  that 
he  was  not  notified. 

I  wish  to  say,  sir,  that  I  have  no  further  argument  to  make  upon 
this  substitute.  I  leave  it  to  the  discretion  of  the  Convention,  but 
I  deem  it  due  to  myself  and  to  my  associates  upon  this -floor  to  say 
that  we  have  no  ulterior  motives  in  pressing  this  amendment.  I, 
for  one,  sir,  am  upon  the  down-hills  of  life,  shortly  probably  to  give 
up  my  earthly  accounts.  I  have  no  interest  in  regard  to  the  matter 
beyond  doing  my  service  to  the  State  and  to  my  people.  I  deem, 
sir,  that  I  am  entitled,  I  believe,  to  the  belief  on  the  part  of  this 
Convention  that  each  and  every  assertion  which  I  make  is  founded 
exactly  in  truth.  I  say,  sir,  in  this  connection,  that  the  Onondaga 
Salt  Springs  Reservation,  so-called,  is  ten  thousand  acres  in  extent. 
There  rests  upon  its  bosom  and  within  its  borders  a  population 
to-day  of  130,000  people,  having  obtained  from  the  State  of  New 
York,  under  laws  that  have  been  passed  in  the  days  that  have  gone 
by,  each  and  every  one  of  them,  a  title  to  the  land  in  fee,  only 
reserving  upon  that  reservation  the  right  of  the  State  to  all  salt 
water  that  might  be  underneath  the  surface.  There  is  in  the  reser- 
vation, as  reported,  nine  hundred  acres  of  land.  A  large  portion  of 
that  land  is  outside  of  and  cannot  by  any  means  ever  be  connected 
with  the  city  of  Syracuse,  unless  it  grows  to  the  broad  proportions 
of  Chicago,  by  an  extension  of  its  territory,  or,  like  New  York, 
becomes  a  great  metropolitan  city.  Sir,  there  are  within  the  limits 
of  Syracuse  about  100  acres  of  that  nine  hundred.  It  is  upon  the 
lowlands  adjacent  to  the  city.  It  cannot  be  utilized  for  any  pur- 
pose under  heaven  except  by  great  expenditure.  That  land  may 
possibly  be  worth  $1,500  or  $2,000  an  acre.  The  remaining  lands 
that  are  within  this  salt  springs  reservation  are  lands  outlying  and 
are  lands  only  worth  so  much  as  the  farm  lands  adjacent  to  them. 

Now,  sir,  the  proposition  in  the  first  instance,  for  the  purpose  of 
releasing  the  State  from  its  interests  in  this  property  was  made  by 
the  gentleman  from  Wyoming,  Mr.  Van  Gorder,  upon  this  floor, 
in  the  interests  of  his  constituents,  believing  that  they  should  not 
be  handicapped  by  an  apparent  help  on  the  part  of  the  State  to  the 
Onondaga  salt  springs  in  the  making  of  salt  on  their  private  lands 
in  the  western  part  of  the  State.  It  has  been  followed  up  by  Onon- 


August  16.]  CONSTITUTIONAL  CONVENTION.  595 

daga,  in  the  same  spirit,  anxious  to  be  put  upon  the  same  platform 
with  the  Warsaw  men  and  the  men  in  the  western  part  of  the  State, 
and  entirely  willing  that  we  should  be  divorced  from  the  State  in 
the  manufacture  of  salt.  Sir,  this  is  almost  the  entire  that  I  have  to 
say  at  present  upon  the  subject.  My  only  idea,  my  only  anxiety 
was,  that  so  far  as  the  manufacture  of  coarse  salt  was  concerned,  on 
leases  held  in  perpetuity,  where  there  is  no  authority  upon  the  part 
of  this  Convention  or  the  Legislature  to  take  it  away  from  us,  that 
there  should  be  some  resolution  by  which  we  could  be  afforded  the 
opportunity  to  go  before  the  commission  who  should  be  appointed 
by  the  Legislature  and  put  a  fair  and  square  construction  upon  the 
proposition  that  they  should  pay  us  for  any  damages  that  might  be 
done  us,  and  in  that  way  get  us  to  consent  that  we  should  be  divorced 
from  the  State  in  the  further  administration  in  the  operations  in  the 
manufacture  of  salt.  If  the  Convention  sees  fit  not  to  do  it,  I  am 
still  in  favor  of  the  proposition,  because  I  believe  that  when  we  show 
clearly  and  distinctly  that  we  will  not  give  away,  and  do  as  the 
people  of  this  State  have  agreed  to  do  in  all  times  past,  keep  us  in 
abundance  of  water  for  the  purpose  of  the  protection  of  our  property 
and  make  all  the  salt  we  choose  to,  and  say  that  so  far  as  that  mat- 
ter is  concerned,  if  we  give  up  that  right  of  the  damages  they  shall 
pay  to  us,  there  never  will  be  an  divorcement  between  the  people 
and  the  parties  occupying  the  premises  that  have  been  spoken  of. 
This  is  all  I  have  to  say  upon  the  subject.  I  have  told  the  truth, 
and  the  entire  truth,  in  all  I  have  had  to  say  before  this  Conven- 
tion. I  propose  to  stick  to  the  truth,  if  God  permits  me,  though 
the  heavens  fall,  and  I  say  now  and  again  that  the  State  of  New 
York  are  paying,  and  will  still  pay,  the  interest,  if  capitalized,  each 
and  every  year,  at  three  per  cent,  on  over  fifteen  hundred  thousand 
dollars.  It  will  soon  crawl  up  of  necessity,  for  we  can  hold  the  State 
to  their  bargain  to  a  vastly  greater  sum,  and  if  you  desire  that  the 
people  of  my  locality  shall  agree  to  the  proposition  of  the  State,  you 
will  pass  a  proposition  such  as  has  been  offered  by  my  friend  upon 
my  left. 

Mr.  Crosby  —  Mr.  Chairman,  I  do  not  wish  to  take  the  time  of 
the  Convention,  except  to  call  attention  to  the  fact  that  the  people 
of  the  State  of  New  York,  through  the  Legislature,  has  recently 
spoken  upon  this  question  very  forcibly  and  emphatically.  I  desire 
to  call  the  attention  of  the  Convention  to  section  3  of  chapter  684  of 
the  Laws  of  1892,  which  provide  that  "the  salt  springs  belonging 
to  the  State,  with  the  salt  water  existing  on  the  Onondaga  reserva- 
tion and  the  lands  contiguous  thereto,  which  are  necessary  and  con- 
venient to  the  use  of  the  salt  springs  and  the  public  works  thereon, 


596  REVISED  RECORD.  [Thursday, 

shall  forever  remain  the  property  of  the  State.  Lands  reserved  or 
used  for  the  manufacture  of  salt  may  be  sold  as  in  this  chapter 
provided,  under  the  direction  of  the  commissioners  of  the  land  office, 
with  a  view  to  the  exchange  of  the  same  with  other  lands  more 
conveniently  located  or  in  large  quantity,  in  which  the  proceeds  of 
the  lands  so  sold  shall  be  invested;  but  the  aggregate  quantity  of 
lands  appropriated  to  the  manufacture  of  salt  shall  not  be  diminished 
by  such  sale  or  purchase." 

That  is  the  expression  of  the  people  only  two  years  ago  upon  this 
question. 

Mr.  Marshall  —  Mr.  Chairman,  the  people  who  spoke  in  1892,  as 
my  friend  from  Delaware  county  has  suggested,  were  the  people 
represented  in  the  Legislature  by  the  members  of  the  Senate  and 
Assembly.  The  statute  which  the  gentleman  read  is  nothing  more 
or  less  than  the  revision  of  the  laws  relating  to  the  salt  springs  of 
the  State,  and  is  nothing  more  or  'less  than  a  code  which  in  one 
statute  incorporates  all  the  laws  pertaining  to  salt  springs  legisla- 
tion. The  language  read  is  nothing  different  than  the  language  of 
the  existing  Constitution.  The  gentleman  forgets  that  the  very 
Legislature  which  provided  for  the  revision  of  the  laws  relating  to 
the  salt  springs  reservation,  made  provision  for  the  submission  to 
the  people  for  a  vote  on  the  very  substitute  which  I  have  to-day 
offered,  with  the  exception  that  I  have  inserted  the  word  "  shall " 
for  the  word  "may."  In  that  very  year  the  people,  in  November, 
speaking  at  the  polls,  declared  by  an  actual  majority  of  votes  that 
this  provision  which  I  have  offered  should  become  a  part  of  the 
organic  law  of  the  State.  The  gentleman  in  his  speech  last  night 
upon  the  suffrage  question  indicated  a  great  concern  for  the  voice 
of  the  people.  He  desired  to  have  the  referendum  run  mad  and 
have  the  question  submitted  to  the  people  as  to  whether  or  not  at 
some  future  day  the  suffrage  should  be  granted  to  women.  To-day 
he  seems  not  to  have  so  much  confidence  in  the  voice  of  the  people. 
He  does  not  regard  what  the  people  said  in  1892,  when  the  question 
was,  through  legitimate  constitutional  channels,  submitted  to  them. 
And  I  say  the  same  of  my  friend  from  Kings  county,  who  to-day 
has  no  such  great  confidence  in  the  voice  of  the  people  as  he  seemed 
to  have  last  night  and  a  few  evenings  ago. 

Mr.  Crosby  —  Mr.  Chairman,  I  desire  to  inquire,  through  you,  of 
the  gentleman  who  has  just  spoken,  whether  the  people,  the  majority 
of  the  people,  voted  upon  that  question  or  not,  and  whether  or  not 
the  actual  vote  cast  on  that  proposition  was  not  less  than  200.000? 

Mr.  Marshall  —  The  proposition  received  a  vote  of  about  345,000. 


August  16.]  CONSTITUTIONAL  CONVENTION.  597 

Mr.  Crosby  —  What  was  the  total  vote  at  that  election? 

Mr.  Marshall  —  About  one  million. 

Mr.  C.  B.  McLaughlin  —  I  move  the  previous  question. 

The  Chairman  put  the  question  on  the  adoption  of  the  previous 
question,  and  it  was  determined  in  the  affirmative. 

The  Chairman  then  put  the  question  on  the  amendment  of  Mr. 
E.  R.  Brown,  and  it  was  determined  in  the  affirmative. 

The  Chairman  then  put  the  question  on  the  adoption  of  the  sub- 
stitute offered  by  Mr.  Marshall. 

Mr.  Marks  —  What  is  the  substitute?  Can  we  have  the  substi- 
tute read? 

The  Chairman  —  The  Secretary  will  read  the  substitute. 

Mr.  Hawley  —  Does  not  the  passage  of  Mr.  Brown's  amendment 
dispose  of  the  substitute,  Mr.  Chairman? 
The  Chairman  —  It  does  not. 

Mr.  Marshall  —  I  desire,  in  view  of  the  fact  that  Mr.  Brown's 
amendment  has  been  adopted,  to  which  I  have  no  objection,  to 
withdraw  the  substitute. 

Mr.  Choate  —  May  the  Secretary  now  read  the  proposition  as  it 
now  stands  amended? 

The  Secretary  read  the  proposition  as  amended,  as  follows: 
*'  The  present  section  7  of  article  7  is  hereby  abrogated." 

Mr.  Alvord  —  Mr.  Chairman,  I  move  you,  sir,  that  the  committee 
do  now  rise,  report  this  proposed  amendment  to  the  Constitution  to 
the  Convention  and  recommend  its  passage. 

Mr.  Hotchkiss  —  Mr.  Chairman,  I  rise  to  a  question  of  inquiry. 
How  will  that  leave  the  amendment  which  has  been  adopted?  Will  it 
drop  it  and  carry  the  original  proposition,  or  will  it  carry  the 
amendment? 

The  Chairman  —  I  do  not  understand  the  gentleman's  question. 

Mr.  Hotchkiss  —  Will  this  motion,  if  it  prevail,  carry  the  proposed 
amendment  to  the  Constitution  into  the  Convention,  as  amended  by 
Mr.  Brown,  or  as  originally  proposed? 

The  Chairman  —  As  amended  by  Mr.  Brown. 

The  Chairman  then  put  the  question  on  the  motion  of  Mr. 
Alvord,  and  it  was  determined  in  the  affirmative. 

President  Choate  resumed  the  Chair. 

Chairman  Bush  —  Mr.  President,  the  Committee  of  the  Whole 
have  had  under  consideration  proposed  constitutional  amendment 


598  REVISED  RECORD.  [Thursday, 

(printed  No.  364),  entitled  "  Proposed"  constitutional  amendment 
to  amend  section  7  of  article  7,  relating  to  the  salt  springs,"  have 
gone  through  with  the  same,  and  have  made  some  amendment 
thereto,  and  have  instructed  the  chairman  to  report  the  same  to  the 
Convention,  and  recommend  its  passage,  as  amended  in  the 
committee. 

The  President  put  the  question  on  agreeing  with  the  report  of 
the  Committee  of  the  Whole. 

Mr.  Dean  —  Mr.  President,  I  call  for  the  ayes  and  noes  on 
agreeing  with  the  report  of  the  committee. 

The  call  for  the  ayes  and  noes  was  not  sustained. 

A  vote  was  then  taken  on  agreeing  with  the  report  of  the  com- 
mittee; it  was  determined  in  the  affirmative,  and  the  amendment 
referred  to  the  Committee  on  Revision,  and  ordered  printed. 

Mr.  Dean  —  I  ask  to  be  recorded  as  voting  "  no  "  specifically  on 
this  proposition. 

The  President  —  The  Clerk  will  enter  Mr.  Dean's  request  upon 
the  Journal. 

Mr.  Moore  —  I  also  request  to  be  recorded  in  the  negative. 
The  President — The  gentleman  will  be  so  recorded. 

Mr.  Bush  —  I  rise  to  a  point  of  order,  Mr.  President.  There  is 
no  taking  of  the  ayes  and  noes  on  a  proposition  of  this  kind.  How 
can  the  gentlemen  be  recorded  as  voting  no? 

The  President  —  A  request  of  this  kind  respectfully  made  by  a 
member  of  the  Convention,  I  suppose,  can  be  entered  upon  the 
Journal,  without  reference  to  the  other  members. 

The  President  —  The  Secretary  will  proceed  to  call  the  general 
orders. 

The  Secretary  called  general  order  No.  4,  introduced  by  Mr.  H«M, 
to  amend  section  5,  article  2,  relating  to  the  manner  of  elections. 
Not  moved. 

The  Secretary  called  general  order  No.  3,  introduced  by  Mr. 
McMillan,  to  amend  section  16,  article  3,  relating  to  legislation. 

Mr.  McMillan  —  I  move  that,  Mr.  President. 

The  President  put  the  question  on  going  into  Committee  of  the 
Whole  on  general  order  No.  3,  and  it  was  determined  in  the 
affirmative. 

The  President  —  Will  Mr.  Blake  please  take  the  chair? 

Mr.  Blake  —  Mr.  President,  I  desire  to  be  excused  to-day.     I 


August  16.]  CONSTITUTIONAL  CONVENTION.  599 

may  avail  myself  of  the  privilege  at  some  later  time.     I  would  pre- 
fer to  be  excused  to-day. 

The  President  —  Will  Mr.  Dean  please  take  the  chair? 

Mr.  Dean  —  Mr.  President,  I  desire  to  be  on  the  floor  of  this  Con- 
vention. I,  therefore,  beg  leave  to  decline  to  act. 

The  President  —  Mr.  Moore  will  please  to  take  the  chair. 
Mr.  Moore  —  I  do  not  desire  to  be  excused. 
Mr.  Moore  in  the  chair. 

Mr.  Moore  —  The  House  is  in  Committee  of  the  Whole  on  gen- 
eral order  No.  3,  printed  number  418,  by  Mr.  McMillan. 

The  Secretary  read  the  proposed  amendment. 

Mr.  McMillan  —  Mr.  Chairman,  I  move  to  strike  out  the  first 
section.  The  object  of  this  proposed  amendment  to  the  Constitution 
is  to  prevent  many  abuses  which  have  obtained  in  the  Legislature, 
of  tacking  on  to  the  annual  appropriation  and  supply  bill  various 
provisions  which  otherwise  could  not  be  enacted.  I  have  in  my 
hand  the  last  appropriation  bill,  which  has  tacked  on  to  it  not  less 
than  eleven  special  provisions,  which  are  not  in  any  manner  indexed, 
which  you  cannot  refer  to  in  any  manner  in  any  of  the  statutes 
except  by  an  examination  of  the  supply  bill  or  the  appropriation  bill, 
some  of  them  going  so  far  as  to  provide  for  misdemeanors.  We  can 
recall  that  in  the  last  appropriation  bill  a  provision  was  made  in 
regard  to  the  administration  of  the  affairs  of  the  Attorney-General's 
office,  and  that  a  conflict  arose  between  the  Senate  and  the  executive 
of  the  State  as  to  whether  or  not  the  entire  supply  bill  should  be 
vetoed  unless  that  provision  were  withdrawn,  and  it  resulted  in  the 
Senate  recalling  the  bill  and  amending  it  by  taking  from  it  the 
provision  which  was  obnoxious  to  the  executive.  I  call  attention 
in  the  last  appropriation  bill  to  a  provision  which  reads  as  follows  — 

Mr.  Alvord  —  Mr.  Chairman,  I  rise  to  a  point  of  order. 
The  Chairman  —  Mr.  Alvord  will  state  his  point  of  order. 

Mr.  Alvord  —  My  point  of  order  is  that  the  gentleman  is  talking 
to  the  wind.  He  has  made  no  motion;  there  is  nothing  before  the 
House. 

Mr.  McMillan  —  I  regret  that  my  friend  did  not  hear  me  move  to 
strike  out  the  first  section. 

The  Chairman  —  The  Chair  will  allow  Mr.  McMillan  to  decide 
that  the  point  of  order  is  not  well  taken. 

Mr.  McMillan  —  One  of  the  provisions  in  the  appropriation  bill 
reads  as  follows:  "All  institutions  receiving  money  from  the  State 


6oo  REVISED   RECORD.  [Thursday, 

treasury  for  maintenance,  in  whole  or  in  part,  shall  deposit  all  funds 
in  some  responsible  banking-house,  bank  or  banks,  in  pursuance  of 
the  provisions  of  chapter  326  of  the  Laws  of  1880."  I  simply  refer 
to  this  to  show  the  carelessness  in  the  method  of  legislation  where 
these  matters  are  tacked  on  to  solne  bill,  and  the  attention  of  the 
Legislatures  are  not  necessarily  called  to  them.  Now,  by  reference 
to  chapter  326  of  the  Laws  of  1880,  you  will  find  that  the  only  bank 
there  referred  to  is  the  Bank  of  the  Genesee  Valley  Canal.  If  there 
is  anything  that  is  ridiculous,  it  is  legislation  of  this  kind,  and  the 
Convention  should  put  a  stop  to  any  opportunity  of  tacking  on  to 
a  supply  bill  in  which  members  of  the  Legislature  are  interested 
special  appropriations,  and  that  the  whole  thing  goes  through  and 
the  tail  goes  with  the  hide.  It  is  an  abuse  which  obtains  in  Con- 
gress, and  it  is  an  abuse  which  has  obtained  in  the  Legislature  for 
the  last  fifteen  years.  No  harm  can  come  from  the  amendment,  and 
the"  principal  objection  to  legislation  of  this  kind  is  that  it  cannot 
be  found  by  anyone.  It  is  never  indexed,  and  we  never  seek  for  it 
in  the  supply  bill.  I  withdraw  my  motion  to  strike  out  the  first 
section. 

Mr.  A.  H.  Green  —  Mr.  Chairman,  I  move  that  the  committee 
rise  and  recommend  the  passage  of  this  amendment. 

Mr.  Hawley  —  Will  the  gentleman  wait  a  moment? 
Mr.  Green  —  I  will  withdraw  for  the  gentleman. 

Mr.  Hawley  —  I  move  to  amend  the  proposed  amendment  by 
striking  out  in  line  four  the  words  "  except  such  as  "  and  inserting 
in  lieu  thereof  the  words  "  unless  it."  I  also  move  to  amend,  at  the 
suggestion  of  the  proposer  of  this  amendment,  in  line  five  after  the 
word  "and,"  by  inserting  the  word  "  any."  The  occasion  of  my 
suggestion  of  the  first  amendment  is,  that  I  have  discovered  in  the 
Constitution  of  1846  a  very  prevalent  custom  of  using  the  word 
"unless"  instead  of  the  word  "except;"  that  the  Legislature  may 
do  something  "  unless,"  shall  not  do  something  "  unless,"  instead  of 
making  it  an  exception;  and  my  suggestion  is  to  make  the  present 
amendment  conform  in  phraseology  without  any  change  of  sub- 
stance, to  the  Constitution  which  we  are  endeavoring  to  amend;  and 
I  understand  that  the  amendment  it  not  unacceptable  to  the  pro- 
poser of  the  amendment. 

The  Chairman  put  the  question  on  the  amendment  offered  by  Mr. 
Hawley,  to  strike  out  from  line  four  the  words  "  except  such  as,"  and 
insert  in  lieu  thereof  the  words  "  unless  it,"  and  in  line  five,  after  the 
word  "  and  "  to  insert  the  word  "  any ; "  and  it  was  determined  in 
the  affirmative. 


August  16.]  CONSTITUTIONAL  CONVENTION.  6oi 

Mr.  Kellogg  —  Mr.  Chairman,  I  find  no  provision  in  the  Constitu- 
tion for  printing  anything  in  italics.  I  move  Jto  strike  out  all  after 
the  words  "  follows  "  in  line  two. 

Mr.  Vedder  —  Upon  what  ground  is  that  asked? 

The  Chairman  —  Mr.  Kellogg  stated  that  it  was  on  the  ground 
that  there  is  no  provision  in  the  Constitution  for  the  printing  of 
amendments  in  italics.  It  is  equivalent  to  a  motion  to  strike  out  all 
after  the  enactment  clause. 

Mr.  Vedder  —  That  would  kill  the  bill,  would  it  not? 

The  Chairman  —  I  suppose  so. 

The  Chairman  put  the  question  on  the  motion  of  Mr.  Kellogg, 
and  it  was  determined  in  the  negative. 

Mr.  A.  H.  Green  then  renewed  his  motion  that  the  committee  rise 
and  report  the  article  as  amended  for  passage  by  the  Convention. 

The  Chairman  put  the  question  on  Mr.  Green's  motion,  and  it 
was  determined  in  the  affirmative. 

President  Choate  resumed  the  chair. 

Chairman  Moore  —  Mr.  President,  the  Committee  of  the  Whole 
have  had  under  consideration  the  proposed  constitutional  amend- 
ment (printed  No.  418),  entitled  "To  amend  article  3  of  the  Con- 
stitution of  the  State  of  New  York  relating  to  legislation,"  have  gone 
through  with  the  same  and  have  made  some  amendments  thereto, 
and  have  instructed  the  chairman  to  report  the  same  to  the  Conven- 
tion and  to  recommend  its  passage. 

The  President  put  the  question  on  agreeing  with  the  report  of  the 
committee,  and  it  was  determined  in  the  affirmative. 

The  President  —  The  amendment  goes  to  the  Committee  on 
Revision  and  will  be  printed. 

Mr.  Jenks  —  I  have  received  a  telegram  stating  that  there  is  ill- 
ness in  my  house,  and  I  would  ask  to  be  excused  from  this  after- 
noon's session  up  to  next  Tuesday  morning,  if  it  be  necessary. 

The  President  put  the  question  on  excusing  Mr.  Jenks,  as 
requested,  and  he  was  so  excused. 

On  motion  Mr.  Kerwin  was  excused  for  the  day  on  account  of 
illness. 

Mr.  C.  S.  Truax  —  Mr.  President,  I  am  obliged  to  go  to  New 
York  and  be  there  to-morrow  and  next  day,  and  would  like  to  be 
excused. 

The  President  put  the  question  on  excusing  Mr.  Truax  as 
requested,  and  he  was  so  excused. 


602  REVISED   RECORD.  [Thursday, 

The  President  —  The  Secretary  will  proceed  to  call  the  general 
orders. 

• 

The  Secretary  called  general  order  Xo.  5,  relative  to  the  transfer 
of  land  titles. 

Not  moved. 

The  Secretary  called  general  order  Xo.  14,  introduced  by  Mr. 
Mereness,  to  amend  article  3,  relating  to  public  officers.  • 

Xot  moved. 

Mr.  Vedder  —  Mr.  President,  by  reason  of  the  fact  that  we  may 
adjourn  and  not  take  the  matter  up,  I  would  like  to  suggest  this,  i 
understand  that  the  minority  of  the  Judiciary  Committee  have  made 
a  report. 

The  President  —  They  have.     It  has  been  ordered  printed. 

Mr.  Vedder —  Oh,  it  has;  the  same  number  as  the  other? 

The  President  —  Under  the  rule  it  is  required  to  be  printed.  No 
extra  number. 

Mr.  Vedder  —  Ought  not  the  same  number  to  be  printed  of  the 
minority  as  of  the  majority  report,  so  that  those  who  investigate  the 
matter  may  have  both  before  them? 

The  President  —  That  is  for  the  Convention  to  say.  I  judge  from 
the  report  it  is  very  brief. 

Mr.  Foote  —  Mr.  President,  I  have  read  the  report  referred  to, 
and  will  state  for  the  information  of  the  gentlemen  that  it  relates 
only  to  the  number  of  judges  in  the  Court  of  Appeals. 

Mr.  Vedder  —  Well,  I  had  understood  from  Mr.  Parmenter,  that 
it  was  thought  of  enough  importance  to  have  the  same  number 
printed  substantially  as  of  the  other  report;  but  if  it  only  relates  to 
one  branch  of  the  subject,  perhaps  it  is  not. 

The  President  —  If  the  gentleman  makes  that  motion  it  will  be 
referred  to  the  Committee  on  Printing. 

Mr.  Vedder  —  I  will,  for  the  purpose  of  having  it  go  to  the  com- 
mittee, and  not  be  acted  upon  except  through  the  committee,  make 
that  motion. 

The  President  —  Mr.  Vedder  s  motion  is  referred  to  the  Com- 
mittee on  Printing.  Mr.  Vedder  will  please  hand  that  in  in  writing. 

R.  174  1-2 —  (By  Mr.  Vedder)  Resolved,  That  5,000  copies  of  the 
minority  report  of  the  Judiciary  Committee  on  the  judiciary  article, 
be  printed  for  the  use  of  the  Convention. 

The  Secretary  called  general  order  No.  8,  introduced  by  Mr. 
Lauterbach,  to  amend  article  2,  relative  to  suffrage. 


August  16.]  CONSTITUTIONAL  CONVENTION.  603 

Not  moved. 

The  Secretary  called  general  order  No.  15,  introduced  by  Mr. 
Tucker,  to  amend  article  i,  relating  to  damage  for  loss  of  human 
life. 

Mr.  Tucker  —  Mr.  President,  I  move  that  amendment. 

The  President  —  Before  the  question  is  put  on  that,  the  Chair 
will  make  the  statement  that  the  matter  as  to  the  printing  of  the 
minority  report  has  been  under  consideration  already;  but  that 
makes  no  difference,  because  Mr.  Vedder's  motion  will  have  to  be 
considered  by  the  Printing  Committee. 

The  President  then  put  the  question  on  going  into  Committee  of 
the  Whole  on  general  order  No.  15,  and  it  was  determined  in  the 
affirmative. 

The  President  —  Mr.  McKinstry  will  please  take  the  chair. 
Mr.  McKinstry  —  I  would  ask  to  be  excused,  Mr.  President.     I 
want  to  offer  an  amendment. 

The  President  —  Will  Mr.  C.  B.  McLaughlin  take  the  chair? 
Mr.  C.  B.  McLaughlin  took  the  chair. 

The  Chairman  —  The  Convention  is  now  in  Committee  of  the 
Whole  on  general  order  No.  15,  introduced  by  Mr.  Tucker. 

The  Secretary  read  the  proposed  amendment. 

Mr.  Veeder  —  I  would  like  to  inquire  where  the  minority  report 
as  printed  can  be  found. 

The  Chairman  —  Printed  Document  No.  36. 
Mr.  McKinstry  offered  the  following  amendment  which  was  read 
by  the  Secretary. 

"Article  one  of  the  Constitution  is  hereby  amended  by  inserting 
the  following  as  a  new  section : 

"  Sec.  — .  The  right  of  action  is  hereby  given  for  loss  of  life  and 
for  injury  to  the  person,  and  whatever  statutory  limitation  may  be 
placed  upon  the  amount  of  damages  recoverable  by  civil  action  for 
the  loss  of  human  life,  such  amount  shall  be  the  minimum  as  well  as 
the  maximum  amount,  to  the  end  that  all  human  lives  shall  be  held 
as  of  equal  value  before  the  law." 

Mr.  Veeder  —  There  was  a  substitute  offered  to  this  minority 
report  which  was  offered  in  a  great  hurry,  and  to  take  the  place  of 
this  Document  36. 

Mr.  Mereness  —  I  think  Mr.  Veeder  will  remember  that  the  sub- 
stitute offered  was  ruled  out  because  it  could  not  be  offered  until  the 
Convention  got  into  Committee  of  the  Whole. 


604  REVISED   RECORD.  [Thursday, 

Mr.  Veeder  —  That  is  a  mistake.  There  was  a  substitute  offered 
by  Judge  Truax.  We  substituted  by  leave  of  the  Convention,  and 
the  President  made  the  inquiry  if  that  met  the  approval  of  the 
gentlemen  who  were  making  the  minority  report,  and  reply  was 
made  in  the  affirmative,  which  was  the  fact.  I  do  not  see  that 
substitute  printed  here. 

Mr.  Hill  —  I  think  that  Mr.  Veeder  will  find  the  matter  referred 
to  on  page  595  of  the  debates. 

Mr.  Veeder  —  I  will  call  your  attention  then  to  page  595  of  the 
debates.  At  the  top  of  the  page,  the  right-hand  line,  I  made  this 
request.  I  asked  leave  of  the  Convention  to  amend  the  minority 
report  before  it  was  printed,  "  so  that  it  shall  read  as  follows,"  and 
submitted  it.  The  President  replied,  "  Is  that  form  assented  to  by 
your  associates  on  the  minority  of  the  committee?  "  I  replied  that  it 
was,  which  was  the  fact.  The  President  replied,  "  Then  it  will  take 
that  form  and  will  be  so  printed."  On  page  595  is  the  substitute, 
and  that  is  the  subject-matter  before  this  Committee  of  the  Whole, 
as  I  understand  it.  To  that  proposition  Judge  Truax  offered  a  sub- 
stitute, which  was  received  and  ordered  printed,  to  which,  of  course, 
we  would  like  to  have  reference  made  now,  so  that  the  committee 
may  understand  exactly  the  proposition  before  it. 

Mr.  C.  H.  Truax  —  It  was  not  ordered  printed;  it  was  ruled  out 
of  order,  but  it  was  read  by  me,  and  should  be  printed,  perhaps,  as 
part  of  my  remarks. 

Mr.  McKinstry  —  As  I  remember  it,  the  substitute  was  ruled  out 
of  order  at  that  time.  The  action  of  the  Convention  simply  referred 
to  the  minority  report  of  the  Committee  of  the  Whole.  This  sub- 
stitute it  was  notified  would  be  offered  later. 

Mr.  Veeder  —  Yes,  I  am  mistaken  about  what  I  said  in  regard  to 
that.  It  is  a  fact  that  it  was  ruled  out,  but  it  was  suggested  that  it 
might  be  offered  in  Committee  of  the  Whole. 

Mr.  McKinstry  —  It  seems  to  me  that  my  amendment  is  first  in 
order,  and  then  the  substitute  can  be  offered. 

Mr.  Veeder  —  I  do  not  object,  Mr.  Chairman,  to  the  substitute  at 
all,  but  I  submit  the  proposition  before  the  Committee  of  the  Whole 
should  be  read.  That  has  not  been  done  as  yet. 

The  Chairman  —  The  main  proposition  before  the  committee  is 
the  proposed  amendment,  general  order  No.  15,  which  was  dis- 
agreed to.  Now,  Mr.  Veeder's  proposition  will  come  in  as  an 
amendment  to  this  minority  report. 

Mr.  Mereness  —  I.  wish  simply  to  call  attention  to  the  fact  that  the 


August  16.]  CONSTITUTIONAL  CONVENTION.  605 

substitute  minority  report  on  page  595  is  in  the  same  language  as 
Document  No.  36. 

Mr.  Cochran —  If  I  may  be  allowed  I  think  I  can  straighten  out 
the  difficulty  which  undoubtedly  prevails  here.  On  page  651  of  the 
debates  it  will  appear  that  an  effort  was  made  to  amend  Document 
No.  36  by  inserting  the  proposed  amendment  as  offered  by  Judge 
Truax.  I  think,  probably,  that  was  the  amendment  to  which  Mr. 
Veeder  refers.  And  the  President  then  ruled  that  the  proposed 
amendment,  Document  No.  36,  would  have  to  be  brought  up  in 
Committee  of  the  Whole. 

The  Chairman  —  The  Chair  rules  that  the  proposition  before  the 
committee  is  general  order  No.  15,  and  if  Mr.  Veeder  desires  to 
move  a  minority  report,  he  can  do  so. 

Mr.  Maybee  —  I  desire  to  cite  page  595  of  the  debates,  where 
Mr.  Veeder  asked  permission  to  amend  the  minority  report,  and  he 
presented  his  amendment.  The  President  of  the  Convention  then 
addressed  to  Mr.  Veeder  the  following  inquiry:  "  Is  that  form 
assented  to  by  your  associates  on  the  minority  of  the  committee?  " 
Then  Mr.  Veeder  replied:  "  Yes,  sir;  I  have  just  consulted  them." 
The  President  then  made  the  following  direction:  "Then  it  will 
take  that  form  and  will  be  so  printed."  I  suppose  under  the  direc- 
tion of  the  President  of  the  Convention  that  that  is  now  the  form 
it  is  in  before  the  Committee  of  the  Whole. 

Mr.  Durfee  —  It  seems  to  me  that  the  confusion  or  misconception 
in  respect  to  this  matter  arises  from  a  lack  of  consideration  of  the 
effect  of  the  Convention  disagreeing  with  an  adverse  report.  As  I 
understand  it,  a  proposition  is  introduced ;  it  is  referred  to  a  standing 
committee;  that  committee  comes  in  with  an  adverse  report;  the 
Convention  disagrees  with  the  adverse  report.  Now,  it  seems  to  me 
to  logically  and  necessarily  follow  that  the  proposition  originally 
introduced,  the  adverse  report  upon  which  has  been  agreed  to,  is  the 
proposition  that  goes  to  the  Committee  of  the  Whole,  and  that  any 
other  proposition  relating  to  the  same  subject-matter  must  neces- 
sarily come  in  as  a  substitute  or  amendment  in  the  Committee  of  the 
Whole. 

The  Chairman  —  The  Chair  has  already  ruled  that  the  proposition 
before  the  House  is  general  order  No.  15,  and  Mr.  Veeder,  if  he 
desires  to  bring  up  a  minority  report,  can  move  it  as  an  amendment. 

Mr.  Tekulsky  —  In  order  to  avoid  future  mistakes  or  misunder- 
standings, I  would  like  to  have  a  thorough  explanation  of  what 
becomes  of  a  minority  report  where  a  majority  report  is  disagreed 
with.  In  my  opinion  that  minority  report,  after  the  majority  report 


6o6  REVISED  RECORD.  [Thursday, 

is  disagreed  with,  becomes  the  subject-matter  in  the  Committee  of 
the  Whole,  and  not  the  article  which  has  been  disagreed  with  by  the 
majority;  because  the  report  of  the  majority  of  the  committee  has 
been  disagreed  with.  That  falls  when  the  minority  report  is  sus- 
tained by  the  Convention.  The  consequence  is  the  matter  before 
the  Committee  of  the  Whole  must  be  the  minority  report.  I  would 
like  to  have  a  ruling  on  that,  Mr.  Chairman. 

The  Chairman  —  The  effect  of  disagreeing  with  an  adverse  report 
is  the  same  as  though  the  report  had  been  favorable  and  gone  to  the 
Committee  of  the  Whole. 

Mr.  Tekulsky  —  Yes,  but  there  has  been  a  minority  report  at  the 
same  time. 

The  Chairman  —  The  minority  report  has  no  place. 

Mr.  Acker  —  I  move  you,  sir,  that  the  minority  report,  which  is 
Document  No.  36,  be  substituted  for  the  proposition  before  the 
Convention. 

Mr.  Tekulsky  —  I  second  the  motion. 

Mr.  Choate  —  I  move  as  an  amendment  to  that,  that  the  amend- 
ment proposed  by  the  minority  report  be  so  substituted. 

Mr.  Acker  —  I  accept  the  amendment. 

The  Chairman  put  the  question  on  the  motion  of  Mr.  Acker,  as 
amended  by  Mr.  Choate,  and  it  was  determined  in  the  affirmative. 

Mr.  McKinstry  renewed  the  offer  of  his  amendment,  which  was 
again  read  by  the  Secretary. 

Mr.  Acker  —  I  rise  to  a  point  of  order,  that  the  substitute  pre- 
sented by  the  minority  report  of  the  committee  is  not  before  the 
House. 

The  Chairman  —  The  Chair  rules  the  point  of  order  not  well 
taken.  The  committee  has  just  adopted  it. 

Mr.  Foote  —  I  rise  to  a  point  of  order.  I  understand  the  effect 
of  the  motion  just  adopted  is  to  substitute  the  minority  report  for 
general  order  No.  15,  as  it  appears  upon  our  files.  As  I  under- 
stand the  amendment  proposed  by  the  gentleman  from  Chautauqua, 
Mr.  McKinstry,  it  is  an  amendment  of  the  proposition  contained  in 
general  order  No.  15,  which  has  already  been  disposed  of. 

The  Chairman  —  The  Chair  did  not  understand  that  it  was 
offered  as  an  amendment  to  general  order  No.  15. 

Mr.  McKinstry  —  Mr.  Chairman,  being  only  a  layman,  I  may  be 
pardoned  by  the  numerous  lawyers  of  this  body  for  having  hereto- 
fore supposed  that  the  amount  of  $5,000  fixed  by  the  statute  as  the 


August  16.]  CONSTITUTIONAL  CONVENTION.  607 

limit  of  amount  to  be  collected  as  damages  for  the  destruction  of  a 
human  life  was  an  absolute  amount  which  was  paid  in  all  cases.  I 
now  learn  from  my  friend,  Col.  Dickey,  that  railroad  companies  are 
in  the  habit  of  pleading  abatement  from  this  sum  and  introducing 
evidence  to  prove  that  the  life  which  was  destroyed  by  their  exclu- 
sive negligence  was  not  a  valuable  life,  as  far  as  earnings  go,  and, 
therefore,  they  should  be  adjudged  to  pay  a  much  smaller  amount. 
Certainly,  if  destroyers  of  human  life  have  no  minimum  amount 
which  they  shall  pay,  and  might  under  that  ruling  even  bring  a 
community  or  a  family  in  debt  to  them  for  removing  burdens  of 
expense,  then  there  should  be  no  maximum  limit.  And  I  also  agree 
with  Mr.  Nichols,  who  spoke  a  few  evenings  ago,  in  saying  that  a 
limit  fixed  in  1849  ig  no  guide  for  damages  now,  when  money  has 
less  comparative  value  and  the  earnings  of  common  carriers  are  so 
greatly  increased.  But  I  fail  to  discover,  Mr.  Chairman,  any  equity 
or  practicability  in  adjudicating  upon  the  value  of  human  lives  in 
dollars  and  cents.  It  is  not  attempted  in  other  circumstances.  A 
man  gets  his  life  insured  for  a  fixed  amount  against  death ;  when  he 
dies  the  amount  is  paid,  and  no  plea  of  abatement  is  allowed  on  the 
ground  of  over-insurance,  as  might  be  in  the  case  of  a  house  or  barn 
destroyed.  A  proposition  to  replace  a  wife  or  husband  with  a  great 
deal  better  article,  which  is  allowed  in  the  case  of  buildings,  would 
be  resented.  The  same  rule  applies  in  the  Criminal  Code.  If  you 
commit  a  murder,  you  cannot  plead  for  acquittal  or  mitigation  of 
punishment  on  the  ground  that  your  victim  was  a  worthless  fellow 
anyway,  and  his  family  and  the  community  are  relieved  of  a  nuis- 
ance. The  theory  is  that  a  human  life  is  sacred,  and,  therefore,  the 
penalty  restricts  and  is  unalterable  for  willful  murder.  Yet  many 
lives  are  lost  in  factories  and  on  railroads  which  are  in  a  degree 
murders,  for  the  victim  has  been  brought  to  his  death  by  the  culpable 
negligence,  or  heartless  indifference,  of  a  man  or  a  corporation 
beyond  his  control.  A  soldier  enlists  in  the  army  and  loses  his  life. 
Does  the  government  inquire  of  the  widow  applying  for  a  pension 
how  much  of  a  husband  he  was  anyway? 

In  all  these  instances  human  life  is  considered  something  essen- 
tially different  from  mere  concrete  property.  Who  can  say  what  a 
human  life  is  really  worth  in  dollars  and  cents  with  even  the  remotest 
degree  of  accuracy?  It  is  replied  that  the  value  is  in  proportion  to 
the  annual  earnings  of  the  individual.  I  respectfully  ask:  For  how 
long  a  period?  I  am  told  that  there  are  members  of  this  body 
whose  personal,  professional  earnings  are  $10.000  a  year,  others 
$20,000,  others  $30,000  and  so  on  upward.  Suppose  a  man  earns 
$50,000  a  year.  The  capital  necessary  to  produce  that  income  at 


6o8  REVISED   RECORD.  [Thursday, 

the  rate  of  five  per  cent  interest  would  amount  to  a  million  dollars. 
How  long  would  we  have  any  common  carriers  if  they  were  liable  to 
pay  such  damages  as  that?  What  would  the  stock  in  any  trans- 
portation line  be  worth?  And  yet,  the  man  who  earns  $50,000  this 
year  may  not  be  able  to  earn  a  solitary  cent  next  year.  He  may 
already  be  afflicted  with  hidden  ailments  that  are  sure  to  kill  him, 
or  anyone  of  the  countless  ills,  mental  and  physical,  to  which  human 
flesh  is  the  unhappy  heir,  may  render  him  to-morrow  utterly  worth- 
less as  an  earning  machine.  On  the  other  hand  the  obscure  man 
who  is  to-day  earning  a  meagre  pittance  may  acquire  a  position 
within  a  year  which  will  require  a  dollar  mark  before  the  figures  that 
state  his  income  for  each  following  minute  of  his  life.  Again,  who 
can  estimate  the  real  value  of  a  man's  life  to  himself  or  to  his  family. 
Many  a  man  keeps  his  family  in  a  brown-stone  front,  while  his 
habits  and  disposition  are  such  that  it  is  but  the  abode  of  misery, 
while  his  neighbor  on  the  back  street,  who  occupies  a  humble 
cottage,  may  be  the  all  in  all  to  a  dependent  family  and  entwined  in 
their  very  heart  strings.  If  he  is  killed,  not  only  is  cruel  and  wast- 
ing poverty  their  lot,  but  the  lives  of  the  children  whom  his  earnings 
would  have  educated  are  blighted,  and  no  more  for  them  are  joyous 
days.  I  have  myself  known  of  a  wealthy  man,  of  great  earning 
capacity,  whose  course  of  life  was  such  that  his  estimable  family 
breathed  a  sigh  of  relief  when  he  passed  away.  Yet  his  family,  left 
in  affluence  and  needing  not  a  dollar,  on  this  basis  of  earning 
capacity,  could  collect  not  less  than  $50,000  on  account  of  his  death 
by  railroad  accident,  while  in  the  case  of  some  other  man,  so  much 
poorer  in  this  world's  goods,  but  so  much  richer  in  all  the  attributes 
that  go  to  make  up  a  noble  manhood,  in  all  the  attributes  that  make  a 
man  pricelessly  dear  to  his  family,  and  of  real  value  to  the  com- 
munity, his  absolutely  destitute  family  would  collect  only  a  beggarly- 
amount.  Mr.  President,  human  life  cannot  be  replaced,  and,  there- 
fore, there  can  be  no  adequate  recompense  made  for  its  destruction. 
"All  that  a  man  hath,  will  he  give  for  his  life."  Whatever  the  theory 
of  the  present  law  may  be,  in  allowing  the  recovery  of  damages  for 
death  caused  by  the  fault  of  an  employer  or  a  common  carrier,  in  my 
humble  opinion  the  damages  should  be  considered  punitive  and  not 
actual.  Upon  that  theory  of  punitive  damages,  all  lives  may  stand 
alike  before  the  law,  as  they  should  and  as  they  do  in  the  criminal 
code. 

The  vital  spark  of  human  life  is  a  sacred  gift,  which  should  never 
be  taken  away  without  due  process  of  law,  nor  estimated  to  be  paid 
for  with  dollars  and  cents.  Its  value  should  never  be  haggled  over 
before  a  petit  jury,  to  be  settled  by  the  testimony  of  brow-beaten 


August  16.]  CONSTITUTIONAL  CONVENTION.  609 

witnesses  or  avaricious  clients.  Whatever  damages  the  Legislature 
decides  should  be  allowed  as  punitive,  that  amount  should  be 
invariable,  whether  the  stricken  person  was  a  millionaire  or  a 
peasant;  whether  he  spent  his  summers  abroad,  hob-nobbing  with 
princes,  or  was  simply  a  plain  American  citizen,  whose  shadow  each 
summer  day's  evening  the  sun  cast  through  an  humble  doorway, 
where  he  was  greeted,  not  by  liveried  servants,  but  by  a  family  to 
whom  his  existence  was  their  very  life  and  light.  It  was  with  this 
view  of  the  case,  Mr.  Chairman,  that  I  prepared  the  amendment 
which  I  have  offered. 

Mr.  Cassidy  —  Inasmuch  as  the  right  of  action  is  a  statutory 
action  and  not  an  action  at  common  law,  and  is  perpetuated  in  the 
Code  of  Civil  Procedure,  which  I  desire  to  read,  and  is  limited  not 
only  in  the  money  consideration,  but  the  right  of  action  is  also 
limited  as  to  whom  the  moneys  shall  go  to,  I  move  you,  therefore, 
that  the  Code  of  Civil  Procedure  be  substituted  as  an  amendment 
to  this  constitutional  provision.  I  read:  "  The  executor  or  admin- 
istrator of  a  decedent,  who  has  left  him  or  her  surviving  a  husband, 
wife  or  next  of  kin,  may  maintain  an  action  to  recover  damages  for 
a  wrongful  act,  neglect  or  default,  by  which  the  decedent's  death  was 
caused,  against  a  natural  person  who,  or  a  corporation  which, 
would  have  been  liable  to  an  action  in  favor  of  the  decedent  by 
reason  thereof,  if  death  had  not  ensued.  Such  an  action  must  be 
commenced  within  two  years  after  the  decedent's  death. 

"  The  damages  recovered  in  an  action,  brought  as  prescribed  in 
the  last  section,  are  exclusively  for  the  benefit  of  the  decedent's 
husband  or  wife  and  next  of  kin;  and  when  they  are  collected  they 
must  be  distributed  by  the  plaintiff  as  if  they  were  unbequeathed 
assets  left  in  his  hands,  after  payment  of  all  debts  and  expenses  of 
administration.  But  the  plaintiff  may  deduct  therefrom  the  expenses 
of  the  action,  and  his  commissions  upon  the  residue;  which  must 
be  allowed  by  the  surrogate,  upon  notice,  given  in  such  a  manner 
and  to  such  persons  as  the  surrogate  deems  proper. 

"  The  damages  awarded  to  the  plaintiff  may  be  such  a  sum,  not 
exceeding  $5,000,  as  the  jury,  upon  a  writ  of  inquiry,  or  upon  a 
trial,  or,  where  issues  of  fact  are  tried  without  a  jury,  the  court  or 
the  referee  deems  to  be  a  fair  and  just  compensation  for  the 
pecuniary  injuries  resulting  from  the  decedent's  death  to  the  person 
or  persons,  for  whose  benefit  the  action  is  brought." 

The  Chairman  —  Now,  Mr.  Cassidy,  will  you  put  your  motion  in 
writing. 

39 


610  REVISED   RECORD.  [Thursday, 

Mr.  Cassidy  —  I  will.  I  move  to  amend  the  amendment  offered 
by  Mr.  McKinstry  by  substituting  the  Code  of  Civil  Procedure, 
which  preserves  the  right  of  action,  in  its  place. 

Mr.  McDonotigh  —  Do  you  mean  the  whole  Code? 

Mr.  Cassidy  —  The  whole  Code. 

President  Choate  resumed  the  chair  and  announced  that  under 
the  rule  adopted  by  the  Convention,  the  hour  of  one  o'clock  having 
arrived,  the  Convention  stands  in  recess  until  three  o'clock. 


AFTERNOON   SESSION. 

Thursday  Afternoon,  August  16,  1894. 

The  Constitutional  Convention  of  the  State  of  New  York  met 
pursuant  to  recess,  in  the  Assembly  Chamber,  in  the  Capitol  at 
Albany,  X.  Y.,  Thursday,  August  16,  1894,  at  3  P.  M. 

Vice-President  Alvord  called  the  Convention  to  order. 

The  President  pro  tcm. —  The  House  will  be  in  Committee  of  the 
Whole  on  the  proposed  constitutional  amendment  No.  380,  and 
the  gentleman  from  Essex,  Mr.  C.  B.  McLaughlin  may  take  the 
chair. 

Mr.  Lester — Mr.  President,  before  the  House  goes  into  Com- 
mittee of  the  Whole,  I  desire  to  ask  to  be  excused. 

The  President  pro  tcm. —  The  Chair  is  opposed  to  it.  The  gentle- 
man from  Essex,  Mr.  McLaughlin,  will  take  the  chair. 

Mr.  C.  B.  McLaughlin  took  the  chair  in  Committee  of  the  Whole. 

The  Chairman  —  The  Secretary  will  state  the  question  before 
the  House. 

The  Secretary  —  The  question  before  the  House  is  the  amend- 
ment offered  by  Mr.  Cassidy,  to  general  order  No.  15,  "Substitute 
sections  1902, 1903  and  part  of  section  1904  of  the  Code  of  Civil  Pro- 
cedure, which  reads  as  follows: 

Mr.  Bush  —  Mr.  Chairman,  I  raise  the  question  that  there  is  no 
quorum  present.  I  think  it  is  a  very  doubtful  matter  whether  there 
is  any  quorum  here,  and  I  do  not  think  we  can  do  business  with 
any  less  number. 

The  Chairman  —  What  action  will  the  committee  take? 

Mr.  Holls  —  I  rise  to  a  point  of  order.  The  point  of  no  quorum 
cannot  be  raised  in  Committee  of  the  Whole.  The  first  proceeding 
is  that  the  committee  rise  and  report  progress,  and  I  simply  hope 
that  that  will  not  be  pressed. 


August  16.]          CONSTITUTIONAL  CONVENTION.  6ll 

Mr.  M.  E.  Lewis  —  That  cannot  be  right  under  the  ruling  of  last 
Friday.  At  that  time  the  rule  was  stated  that  if  it  appeared  that 
there  was  a  lack  of  a  quorum  in  the  Committee  of  the  Whole, 
the  President  shall  resume  the  chair.  If  the  chairman  of  the  Com- 
mittee of  the  Whole  can  determine  that  there  is  no  quorum  present, 
then  it  is  his  duty  to  inform  the  President  to  that  effect,  and  the 
President  will  then  take  his  place,  for  the  purpose  of  ascertaining 
whether  there  is  a  quorum  or  not. 

The  Chairman  —  The  Chair  rules  that  the  point  of  order  made 
by  Mr.  Holls  is  not  well  taken,  and  will  ask  the  President  to  resume 
the  Chair. 

Mr.  Alvord  —  Mr.  Chairman,  in  order  to  determine  whether  there 
is  a  quorum  present  in  the  Committee  of  the  Whole,  I  ask,  sir, 
that  you  ask  those  present  to  rise,  and  remain  until  counted,  so  that 
you  can  determine  whether  there  is  or  is  not  a  quorum. 

The  Chairman  —  The  Chair  has  already  ruled  to  ask  the  Presi- 
dent to  take  the  chair  for  the  purpose  of  ascertaining  whether  there 
is  a  quorum  or  not. 

The  Committee  of  the  Whole  thereupon  rose  ana  Vice-President 
Alvord  resumed  the  chair. 

Mr.  McLaughlin  —  Mr.  President,  the  Committee  of  the  Whole 
have  had  under  consideration  the  proposed  constitutional  amend- 
ment (printed  No.  380),  entitled,  "  Proposed  constitutional  amend- 
ment, to  amend  article  I  of  the  Constitution,  as  to  damage  for  the 
loss  of  human  life,"  and,  finding  no  quorum  present,  have  made  some 
progress  in  the  same,  but  not  having  gone  through  therewith, 
request  the  chairman  to  report  the  fact  to  the  Convention. 

The  President  pro  tern. —  The  gentleman  from  Essex,  Mr.  C.  B. 
McLaughlin,  chairman  of  the  Committee  of  the  Whole,  reports  to 
the  Chair  that  no  quorum  is  present.  In  order  to  determine  that 
question,  the  Secretary  will  proceed  to  call  the  roll  of  the 
Convention. 

The  Secretary  proceeded  to  call  the  roll,  and  the  following  were 
found  to  be  present: 

Messrs.  Abbott,  Ackerly,  Alvord,  Arnold,  Banks,  Barrow,  Becker, 
Bowers,  Burr,  Bush,  Campbell,  Carter,  Cassidy,  G.  W.  Clark,  H.  A. 
Clark,  Cochran,  Coleman,  Deady,  Dean,  Deterling,  Deyo,  Dickey, 
Doty,  Durfee,  Durnin,  Floyd,  Foote,  Andrew  Frank,  Augustus 
Frank,  C.  A.  Fuller,  Galinger,  Giegerich,  Gilbert,  Gilleran,  Goodelle, 
Hamlin,  Hawley,  Hecker,  Hedges,  Hill,  Hirschberg,  Holls,  J.  John- 
son, Kellogg,  Kimmey,  Kinkle,  Kurth,  Lauterbach,  Lester,  M.  E. 


612  REVISED   RECORD.  [Thursday, 

Lewis,  Lincoln,  Mantanye,  Marks,  Marshall,  Maybee,  McArthur, 
McClure,  McCurdy,  McDonough,  Mclntyre,  McKinstry,  C.  B. 
McLaughlin,  McMillan,  Mereness,  Meyenborg,  Moore,  Morton, 
Nichols,  iS'icoll,  Nostrand,  O'Brien,  Osborn,  Parker,  Parmenter, 
Peabody,  Phipps,  Pool,  Porter,  Pratt,  Putnam,  Redman,  Roche, 
Rogers,  Root,  Sanford,  Schumaker,  A.  B.  Steele,  W.  H.  Steele, 
Storm,  Tekulsky,  Tibbetts,  Titus,  Towns,  C.  H.  Truax,  C.  S.  Truax, 
Tucker,  Turner,  Veeder,  Vogt,  Wellington,  Wiggins,  Williams, 
Woodward,  President. 

The  President  pro  tern. —  The  Secretary  reports  ninety-two  pres- 
ent, and  the  gentleman  from  Essex,  Mr.  C.  B.  McLaughlin,  will 
please  resume  the  chair. 

Mr.  C.  B.  McLaughlin  took  the  chair  in  Committee  of  the  Whole. 
The  Chairman  —  The  question  is  on  Mr.  Cassidy's  amendment. 

Mr.  McDonough  —  Mr.  Chairman,  I  would  like  to  inquire 
whether  Mr.  Cassidy  has  sent  up  his  amendment  in  writing. 

The  Chairman  —  The  Secretary  announces  that  he  has  sent  it 
partly  in  writing  and  partly  in  print. 

Mr.  Cassidy  —  Mr.  Chairman,  this  action  is  a  peculiar  action.  It 
is  virtually  an  insurance.  The  fee  which  is  given  in  case  of  death 
is  a  fee  which  cannot  be  reached  even  by  the  creditors  of  the  dece- 
dent, and,  if  the  $5,000  limitation  is  to  be  removed,  it  seems  to  me 
that  in  order  to  preserve  the  right  of  action,  we  must  take  all  the 
sections  of  the  Code  of  Civil  Procedure  which  provide  for  main- 
taining the  action,  and  incorporate  them  into  the  Constitution.  I 
do  not  believe  it  would  be  good  sense  for  us  to  limit  a  statutory 
action  over  which  we  will  practically  have  no  control,  and  one 
which  the  Legislature  might  repeal  at  any  time  it  sees  fit.  If  there 
is  to  be  any  meaning  at  all  to  the  work  of  this  Convention  in 
removing  the  $5,000  limitation,  we  ought  also  to  preserve  the  right 
of  action.  The  amendment  which  I  propose  is  practically  the  right 
of  action  as  it  is  preserved  in  the  Code  of  Civil  Procedure  with  the 
$5,000  limitation  struck  out.  It  seems  to  me  that  this  amendment 
should  prevail. 

Mr.  Dickey  —  Mr.  Chairman,  the  purpose  of  this  amendment  is 
very  evident.  It  is  offered  by  a  gentleman  who  is  opposed,  and  who 
voted  against  the  original  proposition,  overruling  the  committee. 
It  is  intended  to  embarrass  and  defeat  and  hinder  and  delay  this 
proposed  amendment.  I  hope  the  Convention  will  waste  little  or 
no  time,  but  will  speedily  vote  down  the  amendment. 


August  16.]  CONSTITUTIONAL  CONVENTION.  613 

Mr.  Cassidy — Mr.  Chairman,  I  wish  to  correct  the  gentleman. 
I  voted  with  him  when  this  question  was  up  before,  and  I  wish  to 
vote  with  him  now  on  adopting  this  amendment. 

Mr.  Veeder  —  Mr.  Chairman,  do  I  understand  correctly  the  posi- 
tion of  the  Committee  of  the  Whole,  that  the  proposition  now  before 
the  committee  offered  by  the  gentlemen  are  substitutes? 

The  Chairman  —  They  are  amendments. 

Mr.  Yeeder  —  There  are  two  amendments  pending  now? 

The  Chairman  —  There  are  two  amendments  pending  now. 

Mr.  Veeder  —  That  is  the  limit,  is  it  not? 

The  Chairman  —  Yes. 

Mr.  Veeder  —  I  understood  they  were  substitutes? 

The  Chairman  —  They  are  amendments. 

Mr.  Tekulsky  —  Mr.  Chairman,  I  move  we  take  a  vote  on  this 
amendment. 

Mr.  Doty  —  Mr.  Chairman,  I  rise  to  a  point  of  order.  The  prop- 
osition of  the  gentleman  (Mr.  Cassidy)  is  not  an  amendment,  not 
germane  to  the  proposition  under  discussion. 

The  Chairman  —  The  Chair  rules  the  point  of  order  not  well 
taken. 

Mr.  Barrow  —  Mr.  Chairman,  when  this  proposed  amendment 
was  reported  to  this  Convention  adversely  by  the  committee  to 
which  it  had  been  referred,  I  voted  against  the  report,  because  I 
was  in  favor  of  submitting  the  question  to  the  Committee  of  the 
Whole,  not  because  I  favored  the  proposition,  but  because  it  was 
evidently  a  proposition  regarding  which  there  was  a  great  diversity 
of  opinion.  I  voted  in  that  way,  also,  for  the  reason  that  the  question 
was  one  upon  which  I  was  not  then  prepared  to  vote  intelligently. 

I  have  since  considered  the  subject  more  fully  and  I  have  come 
to  the  very  decided  conclusion  that  the  report  of  the  committee  is 
correct  and  that  none  of  the  proposed  amendments  should  be  sub- 
mitted by  this  Convention  to  the  people. 

I  have  not  come  to  this  conclusion  wholly  upon  the  ground  that 
it  is  a  matter  properly  of  legislation,  and  fully  within  the  power 
of  the  Legislature,  and,  therefore,  not  a  subject  with  which  this 
convention  should  deal,  but  because  I  believe  it  to  be  an  unwise 
proposition  upon  its  merits. 

Nevertheless,  I  do  oppose  it,  as  I  think  we  should  oppose  every 
amendment  here,  of  a  purely  business  character,  when  the  relief 
sought  for  can  be  obtained  through  the  Legislature.  If  we  were 
making  a  new  Constitution  here,  that  is  a  rule  which  should  be 


614  REVISED   RECORD.  [Thursday, 

observed  in  making  it,  and  in  simply  revising  the  existing  Consti- 
tution or  proposing  amendments  to  it,  that  rule  should  be  still  more 
closely  adhered  to.  Why,  I  ask,  should  this  Convention  so  degrade 
itself  as  to  resolve  itself  into  a  mere  legislative  body.  It  is  true 
that  this  proposed  amendment  is  a  limitation  on  the  power  of  the 
Legislature,  but  it  nevertheless  partakes  of  the  character  of  legisla- 
tion. The  Legislature  has  power,  at  any  time,  to  repeal  the  statute, 
and  having  done  that,  the  purpose  of  this  proposed  amendment  will 
have  been  served;  and  I  believe  the  responsibility  for  such  legis- 
lation should  rest  not  upon  this  Convention  but  upon  the 
Legislature. 

We  have  been  told  upon  this  floor  that  the  reason  why  this 
matter  should  not  be  entrusted  to  the  Legislature  is  because  the 
Legislatures  of  this  State  cannot  be  trusted.  That  is  a  suggestion 
to  which  I  propose  to  shut  my  ears.  I  don't  want  to  believe  it  and 
I  won't  believe  it.  We  have  no  right,  in  my  judgment,  to  believe 
it.  Let  us  act  here,  at  all  events  as  if  we  believed  in  the  honesty 
of  our  Legislature.  It  has  always  been  my  opinion,  sir,  that  the 
dishonesty  of  our  Legislatures,  if  it  exists,  exists  largely  because 
they  are  branded  in  advance.  But,  however  that  may  be,  I  am  not 
engaged  here,  and  I  should  not  be  so  engaged,  in  making  a  Con- 
stitution upon  the  assumption  that  Legislatures  are  dishonest.  I 
believe  the  Legislatures  are  as  honest  as  the  people  behind  them, 
as  the  people  who  elect  them,  so  that  when  we  shall  have  made 
a  Constitution  for  the  people  we  have  done  our  full  duty. 

I  therefore  say  that  this  is  a  subject  which  should  be  left  entirely 
to  the  Legislature.  It  has  been  suggested  that  repeated  efforts  have 
been  made  to  repeal  the  statute  in  the  Legislature.  I  know  nothing 
about  such  efforts  and  I  doubt  if  they  ever  occurred.  If  they  did, 
however,  it  is  no  proof  that  the  efforts  failed  by  reason  of  corrup- 
tion, because  I  believe,  sir,  that  if  an  effort  should  be  made  next 
winter  in  the  Legislature  to  repeal  the  statute,  it  ought  to  fail  upon 
its  merits. 

I  don't  know  from  whence  or  from  whom  this  proposed  consti- 
tutional amendment  comes.  I  assume  that  it  emanates  in  part,  if 
not  wholly,  from  that  element,  of  comparatively  recent  growth, 
which  has  come  to  hate  the  name  and  the  existence  of  a  corpora- 
tion. For  that  class  of  people,  whoever  they  may  be,  wherever  they 
may  exist,  I  have  no  sympathy.  I  believe  that  the  corporations 
which  have  grown  up  in  this  State  are  beneficial  institutions  which 
should  rather  be  fostered  than  destroyed.  I  have  no  sympathy  with 
the  spirit  that  is  constantly  striking  at  them,  and  endeavoring  to 
cripple  them. 


August  16.]  CONSTITUTIONAL  CONVENTION.  615 

For  the  poor  man,  for  the  laboring  classes,  they  should  be  every- 
where and  at  all  times  encouraged.  The  more  there  are  of  them 
the  more  labor  they  furnish;  the  more  there  are  of  them  the  higher 
wages  are  secured;  the  more  there  are  of  them  the  greater  is  the 
competition  and  the  lower  are  the  prices  of  commodities.  Com- 
peting manufactories  and  corporations  bring  up  the  price  of  labor; 
competing  manufactories  and  corporations  bring  down  the  prices  of 
commodities.  In  this  way,  in  my  judgment,  and  in  this  way  only, 
can  we  prevent,  and  we  have,  prevented  monopolies,  which  are  able 
to  dictate  to  laborers  and  consumers  alike. 

And  yet,  sir,  it  has  grown  to  be  the  fashion  for  both  laborers  and 
consumers  to  attack  corporations  as  if  they  were  the  enemies  of  the 
State.  It  is  the  result,  sir,  as  I  believe,  of  the  teachings  of  socialism, 
that  exotic,  recently  implanted  into  our  soil  and  which  only  by  rea- 
son of  its  novelty  has  unfortunately  taken  root.  It  i§  the  seed 
of  that  other  social  evil,  anarchy  and  chaos. 

To  this  new  element  in  our  political  life  I  am  inclined  to  trace 
this  proposed  constitutional  amendment.  But  I  think,  sir,  that 
it  has  another  source.  It  comes  here  and  is  supported  very 
largely  in  the  interest  of  the  most  conservative  of  all  the  governing 
classes,  the  lawyers.  I  do  not  think  we  have  far  to  go  for 
the  reason  why  this  amendment  found  so  much  strength  on  the 
floor  of  this  Convention.  This  is  a  body  of  lawyers,,  of  lawyers 
whose  business  and  employment  has  frequently  been  to  bring  actions 
for  negligence,  and  who  for  personal  reasons  do  not  wish  their 
recoveries  limited,  because  such  limitations  limit  their  fees.  At  least 
fifty  per  cent  of  the  cases  of  this  character,  I  think,  are  taken  up 
by  lawyers  on  a  division  of  the  recovery,  so  that  when  they  plead 
for  the  prohibition  of  this  limitation  at  least  fifty  per  cent  of  their 
pleading  is  for  themselves. 

What  they  plead  for  they  say  is  just,  and  what  they  want  is,  that 
there  shall  be  no  limitation.  They  argue  that  the  limitation  is  a 
wrong  upon  the  poor  man.  I  have  always  observed,  sir,  that  when 
an  unwise  thing  of  this  character  is  urged  the  poor  man  and  the 
laboring  man,  who  is  the  holder  of  a  vote,  is  held  up  as  a  menace. 
I  challenge  any  man  upon  the  floor  of  this  Convention,  to  go  deeper 
into  his  pocket  or  to  go  further  in  his  acts  to  show  his  interest  in 
the  improvement  and  welfare  of  the  poor  and  laboring  classes  than 
myself.  I  have  been  one  of  them  myself  and  I  have  realized  their 
deprivations,  but  this  proposed  amendment  is  in  the  interest  of  the 
rich  rather  than  in  the  interest  of  the  poor. 

The  limitation  of  $5,000  on  a  life  is  the  assertion  practically  that 
that  is  the  value  of  a  life,  whether  it  is  the  life  of  a  poor  man  or  a 


6:6  REVISED   RECORD.  [Thursday, 

rich  man.  The  poor  man's  relatives  almost,  without  exception,  get 
so  much,  and  the  rich  man's  next  of  kin  get  no  more.  Then,  sir, 
you  have  equality. 

Our  friends  would  have  this  change.  Let  me  state  their  case, 
if  I  understand  it.  Take  two  men  riding  in  the  same  railway  car- 
riage. One  is  a  merchant  who  has  laid  by  half  a  million  dollars, 
and  earns  in  his  business  $100,000  per  annum.  The  other  is  a 
laborer  who  earns  by  his  labor  $300  or  $400  a  year.  Both  are 
killed  in  the  same  accident,  and  there  is  no  limit  on  the  recovery. 
The  merchant's  case  goes  before  the  intelligent  jury,  and,  if  the 
two  cases  are  decided  upon  the  evidence  which  would  be  offered 
in  such  cases,  the  jury  would  be  bound  to  consider  in  each  case 
the  value  of  each  life  upon  its  respective  earnings.  The  jury  would, 
however,  consider  $50,000  an  enormous  sum  to  be  given  to  the 
rich  man'g  next  of  kin,  but,  if  they  applied  the  same  measure  of 
damage  to  the  poor  man's  case,  $300  (not  $5,000)  would  be  an 
enormous  sum  to  give. 

The  result,  therefore,  with  honest  juries,  under  the  guidance  of 
the  court,  with  this  limitation  stricken  from  the  statute,  might 
prove  of  benefit  to  the  next  of  kin  of  the  rich  man,  but  fatal  to  the 
next  of  kin  of  the  poor  man. 

Neither  railroads  nor  corporations  of  any  kind  would  suffer  from 
the  adoption  of  the  amendment  proposed,  so  far  as  the  claims  of 
laboring  men  or  poor  men  are  concerned,  but  from  the  claims  of 
rich  men  earning  in  their  vocations  large  annual  incomes.  And 
the  railroads,  forced  to  pay  such  sums,  would  be  compelled  to 
recover  the  losses  in  some  way.  The  only  way  that  could  be  done, 
would  be  to  reduce  labor.  Thus  the  laborers  would  be  compelled 
to  pay,  in  one  way  or  another,  the  damages  which  the  railroads 
had  been  compelled  to  pay  for  the  deaths  of  the  money-making 
rich  men  by  the  verdicts  of  honest  juries. 

It  has  been  said  that  the  limitation  in  case  of  death,  and  the 
absence  of  limitation  in  the  case  of  injury,  presents  an  absurdity. 
I  deny  it.  Right  here  comes  in  again  the  justice  of  the  law  to  the 
poor  man.  Damages  are  awarded  in  such  cases  for  pain  and  suffer- 
ing, and  the  law  says  that  a  poor  man's  suffering  from  an  injury 
is  as  great  as  the  rich  man's  and  should  be  paid  with  precisely  the 
same  liberality;  and  that  is  true;  nay,  it  should  be  paid  for  with 
even  greater  liberality.  The  rich  man,  with  his  means,  may  allevi- 
ate some  of  the  pain  which  the  poor  man  must  suffer.  Therefore, 
it  is  that  in  a  case  of  injury  there  is  no  limitation  by  the  statute  of 
the  damages  which  may  be  necovered.  I  assert  that  the  limitation 
of  $5,000  in  the  case  of  death,  and  the  non-limitation  in  the  case  of 


August  16.]  CONSTITUTIONAL  CONVENTION.  617 

injury  go  hand  in  hand,  and  that  both  are  in  the  interest  of  the  poor 
man  and  the  laborer. 

The  law,  as  it  stands,  puts  the  money-maker  and  the  rich 
on  an  equality  with  the  wage-earner  and  poor,  and  there  I  would 
have  it  remain.  Put  this  provision  into  the  Constitution,  and  the 
result  must  inevitably  be,,  if  courts  and  juries  are  honest,  to  lessen 
the  recoveries  of  $5,000  verdicts  in  the  case  of  poor  men  at  least 
fifty  per  cent,  while  it  would  increase  the  recoveries  in  the  case  of 
rich  men  in  the  same  proportion,  to  the  injury  and  loss  of  the  poor 
men  not  injured  and  living  upon  their  wages.  But  it  must  be 
remembered  that  this  provision  does  not  strike  at  railroads  and  the 
great  corporations  only,  but  at  every  person  and  corporation  which 
furnishes  labor  —  I  say  every  person  and  corporation  which  fur- 
nishes labor. 

And  I  assert  that  there  is  something  due  to  the  corporations 
which  furnish  labor.  They  say  that  corporations  are  without  souls, 
but  the  individuals  which  make  up  the  corporations,  and  the  individ- 
uals which  employ  labor  have  souls.  Many  a  corporation,  sir, 
has  been  organized  for  the  sole  purpose  of  furnishing  labor,  for  the 
benefit  of  the  idle.  I  know  of  such  corporations,  manufacturing 
corporations,  and  I  have  no  hesitation  in  saying  that  all  corpora- 
tions are  extremely  careful  of  the  lives  and  limbs  of  their  employes, 
but.  accidents  will  occur,  and  while  they  may  be  denominated  acci- 
dents, the  courts  have  denominated  them  the  result  of  negligence. 
A  new  boiler  may  explode,  but,  if  it  does,  the  courts  have  said  that 
the  fact  of  the  explosion  is,  per  se,  evidence  of  negligence;  and 
how  are  you  to  disprove  such  a  presumption? 

So,  I  say  that  there  are  many  cases  of  unavoidable  accidents,  very 
many  cases  against  which  it  has  been  impossible  to  have  expected 
the  result,  in  which  the  courts  under  existing  circumstances  have 
left  it  to  the  jury  to  determine  the  fact  of  negligence,  in  which,  if 
you  change  the  existing  law,  the  courts  will  adopt  more  stringent 
rules. 

But  for  these  corporations,  these  individuals  who  venture  their 
money  for  the  public  good,  there  should  be  some  consideration. 
They  should  not  be  treated  as  outlaws,  and  public  enemies,  but  as 
the  builders  up  of  the  State  and  nation,  without  which  enterprise 
would  cease  and  labor  would  find  no  employment. 

But,  sir,  without  further  wearying  the  committee,  for  there  is 
much  more  that  might  be  said  in  opposition  to  this  proposed  amend- 
ment, I  leave  the  subject  to  the  good  sense  of  the  delegates, 
entreating  them  not  to  degrade  this  Convention  into  a  mere  legisla- 
tive body,  and  not  to  fly  to  evils  which  they  know  not  of. 


6i8  REVISED  RECORD.  [Thursd  y. 

Mr.  Veeder — Mr.  Chairman,  it  is  the  desire  of  the  minority  of 
the  committee  who  have  submitted  this  report  that  the  question  shall 
come  directly  before  the  Convention,  whether  or  not  from  past 
experience,  and  the  conduct  of  Legislatures,  the  time  has  arrived 
when  the  organic  law  shall  be  so  amended  as  to  take  possession  of 
this  subject.  It  seems  to  me  that  that  proposition  is  the  first 
to  be  considered.  I  do  not  rise  to  discuss  the  merits  entirely 
of  the  proposition,  but  rather  having  that  object  in  view,  to 
so  frame  the  provision  to  be  inserted  in  the  Constitution 
as  to  properly  meet  the  object.  With  that  in  my  mind,  I  submit 
that  the  amendment  offered  by  Mr.  Cassidy  is  objectionable.  It 
deals  more  with  the  subject  of  legislation  than  the  precise  subject 
that  we  desire  to  consider  here;  to  wit,  shall  there  be  a  limit  to  the 
amount  of  recovery  in  actions  for  the  loss  of  life,  or  shall  that  limit 
be  removed,  and  shall  the  right  of  action  at  all  remain  in  the  province 
of  the  Legislature,  or  shall  this  Convention  put  into  the  organic 
law,  there  to  remain  and  not  to  be  subjected  to  the  caprice  of  a 
Legislature,  the  fact  that  a  right  of  action  shall  be  given?  Now,  it 
seems  to  me  that  we  should  be  permitted  to  perfect  such  a  proposi- 
tion as  this  before  we  reach  the  question:  Shall  such  a  proposition 
be  incorporated  into  our  organic  law?  And,  therefore,  I  submit  that 
the  proposition  or  amendment  offered  by  Mr.  Cassidy,  is  in  fact,  as 
he  so  states  himself,  the  incorporation  into  the  Constitution  of 
subjects  of  legislation.  I  am  not  here  to  say  that  I  doubt  the 
Legislature.  None  of  us  know  what  the  next  Legislature  will  be. 
These  Legislatures  have  passed  out  of  existence,  but  to  relieve 
coming  Legislatures  or  future  Legislatures  from  the  agitation  of  this 
subject,  and  I  submit  that  the  question  has  been  agitated  time  and 
again,  relief  has  been  sought  from  this  restriction  or  limitation  from 
the  Legislature,  and  since  1848  no  relief  has  been  afforded.  There- 
fore, I  submit  that  the  amendment  offered  by  Mr.  Cassidy  should 
not  prevail,  but  that  those  who  are  in  sympathy  with  the  proposition 
that  the  committee  have  reported  may  be  allowed  to  perfect  it  as 
best  they  can. 

Mr.  Bush  —  Mr.  Chairman,  I  had  not  proposed  to  say  anything 
on  this  subject,  but  the  remarks  of  the  gentleman  who  first  dis- 
cussed this  question  (Mr.  Barrow),  seem  to  me  somewhat  mis- 
leading. The  question  as  to  whether  or  not  the  subject  of 
having  a  limitation  upon  the  amount  of  recovery  for  damages  in 
cases  of  negligence  is  one  which  has  a  great  bearing  upon  the 
welfare  of  the  public  in  this  and  every  other  State,  in  a  manner 
entirely  different  from  the  way  in  which  it  was  discussed  by  that 
gentleman.  Xow,  Mr.  Chairman,  it  seems  to  me  that  there  should 


August  16.]  CONSTITUTIONAL  CONVENTION.  619 


be  no  limitation  of  the  amount  of  recovery  in  an  action  for  recovery 
in  cases  of  negligence;  and,  although  it  would  seem  that  it  was  in 
the  nature  of  legislation  to  put  that  clause  into  the  Constitution,  yet 
the  fact  that  for  forty  years  it  has  remained  the  statute  of  this  State, 
and  the  anomalous  condition  has  existed  of  a  recovery  of  $5,000  for 
a  death,  and  an  unlimited  recovery  for  an  injury,  would  seem  to 
lead  to  the  conclusion  that  it  should  no  longer  be  tolerated.  Mr. 
Barrow,  in  his  remarks,  discussed  it  entirely  in  the  nature  of  com- 
pensatory damages,  and  he  illustrated  the  question  by  supposing  a 
rich  man  and  a  poor  man  both  being  injured.  I  submit,  Mr.  Chair- 
man, that  that  has  little  or  nothing  to  do  with  this  question.  It  is 
a  bigger  and  a  broader  question  than  that,  in  every  sense  of  the  word. 
In  any  action  of  that  character,  punitive  or  vindictive  damages  are 
and  should  be  recovered.  They  are  in  the  nature  of  a  fine  upon  the 
individual  or  corporation  inflicting  the  injury  through  negligence, 
and  the  amount  of  fine  is  paid  over  to  the  person  injured  or  his  repre- 
sentative. Now,  the  fact  that  a  fine  is  inflicted  upon  a  corporation 
for  negligence  is  of  the  greatest  importance  to  the  people  of  this 
State  who  travel  upon  railroads,  steamboats,  and  in  the  hundred  and 
one  other  ways  in  which  an  accident  to  the  individual  may  occur 
from  corporations  or  others  interested  in  a  public  capacity.  Were 
it  not  for  the  fact  that  an  action  may  be  maintained  for  damages,  I 
insist,  Mr.  Chairman,  that  there  would  be  nowhere  near  the  care 
taken  in  public  conveyances  that  is  taken  to-day,  and  the  stronger 
the  action  for  damages  is,  the  greater  the  care  will  be  on  the  part 
of  the  corporations  carrying  the  public  or  coming  in  connection 
with  the  public;  and  I  maintain  in  that  connection  that  there  is  where 
the  people  of  this  State  are  interested  to  a  greater  extent  than  in 
any  other.  The  question  as  to  who  will  receive  the  amount  of  the 
recovery  is  of  secondary  importance.  The  fact  that  a  railway  cor- 
poration or  a  steamboat  corporation  is  open  to  large  recoveries  for 
wilful  negligence  will  have  a  tendency  to  make  them  use  the 
utmost  care  and  caution,  and  thus  avoid  accidents;  and  that  is  the 
first  requisite  and  the  way  in  which  the  public  are  interested  in  this 
question.  I  insist  that  punitive  or  vindictive  damages  should  always 
be  recoverable,  and  in  that  case  it  does  not  matter  whether  a  man 
is  worth  $100,000  a  year  to  his  family  or  two  dollars  a  day, 
so  long  as  the  amount  of  damages  to  be  recovered  is  left  to  the  jury, 
and  so  long  as  not  merely  compensatory  damages  are  recoverable. 
That  may  always  be  left  with  safety  to  the  court  which  is  to  apply 
the  remedy.  Juries  and  courts  are  not  always  ignorant.  The  pre- 
sumption is  that  they  do  justice,  and  \ve  can  rely  upon  them  that 
they  will  do  justice;  but  I  insist  that  the  question  should  be  looked 


620  REVISED  RECORD.  [Thursday 

» 

at  in  a  larger  light,  that  the  effect  of  incorporating  into  this 
Constitution  the  amendment  that  no  limitation  shall  be  placed 
upon  the  amount  of  recovery  will  have  a  tendency  to  compel  cor- 
porations and  others  to  use  the  utmost  care  and  caution  to  avoid 
accidents,  and  in  that  way  the  people  of  the  State  will  be  interested 
to  a  much  greater  extent,  than  as  to  whether  the  individual 
recovers  $5,000  or  $10,000.  The  fear  of  large  recoveries 
will  make  railway  companies  use  more  caution.  They  will  not 
work  men  eighteen  hours  a  day  until  they  become  so  sleepy  and 
tired  out  from  exhaustion  that  they  cannot  use  due  care.  The 
employers  will  be  more  cautious,  and  the  public  will  in  that  way 
be  benefited,  and  anything  of  that  character  is  of  sufficient  import- 
ance to  be  placed  in  the  Constitution  of  this  State.  This  act  per- 
mitting a  recovery  for  injuries  is  a  purely  statutory  enactment,  and 
since  it  has  been  incorporated  into  the  laws  of  this  State,  corpora- 
tions have  been  much  more  careful  than  they  formerly  were;  and 
if  you  remove  the  restriction  and  place  an  article  in  the  Constitution 
prohibiting  the  limitation  for  the  amount  of  recovery,  they  will  use 
still  greater  caution,  and  attempt  in  every  possible  way  to  avoid 
accidents,  and  thus  not  be  compelled  to  pay  so  large  damages.  It 
is  assumed,  apparently,  by  Mr.  Barrow,  that  in  all  cases  of  an  acci- 
dent, a  recovery  is  had.  That  is  not  true  and  never  has  been  true. 
It  is  only  in  cases  of  negligence,  where  the  party  injured  has  in  no 
way  contributed  to  the  injury  himself,  and  if  any  corporation  through 
its  negligence,  and  without  corresponding  negligence  or  contribu- 
tory negligence  on  the  part  of  the  person  injured,  injures  any  indi- 
vidual, it  should  be  compelled  to  respond  in  damages,  and  there 
should  be  no  limitation  of  the  kind  that  exists  at  present,  rendering 
cheaper  to  kill  a  man  than  it  is  to  hurt  him.  I  think,  Mr.  Chair- 
man, that  notwithstanding  this  has  a  tendency  to  and  in  its  nature 
looks  somewhat  as  though  we  were  legislating  in  the  Constitution, 
yet  the  subject  is  of  great  and  sufficient  importance  for  us  to  depart 
from  the  rule  in  that  case,  and  I  hope  it  will  be  incorporated  and 
placed  in  the  Constitution. 

Mr.  Schumaker  —  Mr.  Chairman,  there  is  no  statutory  limitation 
in  relation  to  the  injury  of  a  person  unless  you  kill  him.  In  1847 
a  law  was  passed  that  if  a  person  was  killed,  the  person,  corpora- 
tion, man  or  woman,  that  killed  him,  could  be  prosecuted.  Now, 
as  to  the  law  of  damages;  if  the  boy  killed  was  an  idiot,  you  could 
not  get  a  cent,  although  it  might  tear  your  heart  strings.  If  the 
man  was  a  lunatic  or  a  drunkard,  who  did  not  bring  a  six-pence  a 
week  into  his  house,  you  could  not  get  a  cent;  that  is,  before  an 
impartial  jury  and  an  honest  jucl^c.  Now,  it  rests  entirely  with  the 


August  16.]  CONSTITUTIONAL  CONVENTION.  621 

cold,  solid  law  of  this  question.  If  a  man  is  killed,  it  is  not  neces- 
sary to  prove  that  his  life  would  be  estimated  at  so  much  and  so 
much  and  so  much.  The  law  stopped  that.  You  cannot  have 
prospective,  uncertain  damages.  A  man  in  Wall  street  in  one  year 
may  make  a  hundred  thousand  dollars.  Would  you  estimate  that 
man's  value  at  a  hundred  thousand  dollars  a  year  for  twenty  years, 
when  in  three  weeks  he  might  be  a  bankrupt?  A  poor  farmer  may 
make,  by  selling  apples  and  cherries  and  peaches  one  year,  two  or 
three  hundred  dollars.  An  employe  may,  by  some  accident  on  his 
farm,  be  killed  by  a  kicking  horse,  a  runaway  team  or  something  of 
that  sort.  Would  you  take  that  man's  farm  away  from  him  just 
because  that  man  had  been  killed  in  his  employ?  It  is  not  these 
terrible  corporations  alone  which  have  to  stand  the  brunt  of  this 
matter,  these  terrible  corporations  that  every  State  and  every  nation 
has  helped  to  foster.  I  remember,  and  I  am  not  so  very  old,  as 
some  may  think,  when  there  was  not  a  railroad  in  this  State,  and 
when  people  in  towns  and  villages  begged  and  prayed  of  rich  men 
to  build  them  railroads;  when  the  State  of  New  York  gave 
them  money,  and,  in  a  great  many  instances,  never  got  it  back. 
I  know  of  several  instances  where  the  State  of  New  York 
loaned  money  to  railroads,  and  they  were  sold  for  two  or  three 
cents  on  a  dollar.  These  corporations  have  been  begged  by  peo- 
ple in  the  villages  and  of  people  in  the  cities  and  counties  of  this 
State  to  come  and  do  business  among  them,  to  employ  the  poor; 
but  the  growling  that  you  hear  in  Legislatures  and  in  this  body 
about  those  terrible  corporations  can  hardly  be  conceived  of.  What 
would  this  State  be  without  its  corporations?  See  how  liberal  it 
has  been  in  all  its  great  works.  It  has  given  us  the  great  canal 
from  Erie  to  Hudson.  Dozens  and  dozens  of  other  corporations 
have  had  money  almost  given  to  them  by  the  State.  The  great 
railroad  running  up  to  the  iron  region  of  this  State  was  sold  to  a 
gentleman,  I  believe,  for  a  dollar,  built  by  the  State,  to  help  increase 
the  wealth  of  the  country  into  which  it  ran.  But,  those  terrible  cor- 
porations! And  yet,  you  will  find  these  men  running  to  them  and 
begging  for  passes.  All  of  the  railroads  of  this  State  are  besieged 
by  members  of  Legislatures  and  different  public  bodies  and  by 
most  everyone  to  get  passes  to  ride  on  their  roads  for  nothing.  My 
good  friend,  Mr.  Moore,  here  in  this  Convention  has  a  constitutional 
amendment  on  that  subject,  so  that  the  county  judges  and  district 
attorneys,  and  all  these  people  who  get  a  salary  from  the  State, 
shall  ride  free  on  the  roads  of  corporations  that  cost  stockholders 
many  thousands  and  thousands  of  dollars  to  build.  There  is  a  let- 
ter in  this  Convention  from  a  gentleman  in  Philadelphia,  saying  that 


622  REVISED  RECORD.  [Thursday, 

if  he  did  not  give  passes  to  the  gentlemen  who  asked  for  them,  they 
would  turn  him  a  cold  shoulder,  and  fight  and  stab,  and  attempt 
to  kill  the  corporation.  Sometimes,  I  am  told,  they  not  only  want 
a  pass  on  the  ordinary  cars,  but  they  want  a  palace  car  permit,  also, 
to  ride  from  one  end  of  the  country  to  the  other.  Now,  gentlemen 
of  this  Convention,  we  have  had  this  threshed  and  threshed  in  the 
Committee  on  Bill  of  Rights.  Men  would  say:  You  are  a  lawyer, 
why  are  you  opposing  this?  Well,  I  stand  up  a  little  for  my  pro- 
fession. I  have  a  little  pride  in  my  profession,  although  I  have  left 
it  in  my  old  age,  to  have  the  rest  of  my  life  to  myself;  but  I  cannot 
bear  to  hear  innocent  corporations  abused  and  insulted  without  any 
cause.  Gentlemen  may  laugh,  but  laughing  is  no  argument.  I  do 
not  intend  to  be  at  all  humorous  in  what  I  say,  but  this  is  a  broad 
and  sweeping  section  to  put  into  the.  Constitution  of  this  State. 
There  never  was  an  occasion  for  it.  If  the  Legislature  is  not  able  to 
settle  this  matter,  let  there  be  some  amendment,  by  some  wise  man, 
put  into  this  Constitution,  abolishing  the  Senate  and  Assembly.  I 
do  not  intend  to  detain  the  Convention  much  longer,  although  a 
gentleman  in  my  place  in  the  last  Convention  said  he  was  not  going 
to  say  much,  and  he  talked  three  weeks.  There  is  some  limit  to 
my  talk.  In  all  the  cases  that  I  have  been  acquainted  with  in  our 
courts  in  New  York  or  Brooklyn,  it  is  very  seldom  that  five  thou- 
sand dollars  is  recovered.  Sometimes  the  courts  set  aside  cases  where 
there  is  a  little  too  much,  or  where  there  is  too  little  evidence. 
That  they  do,  and  that  they  will  continue  to  do,  as  long  as  we  have 
courts  and  good  ones.  You  have  proved  your  defense  if  you  prove 
contributory  negligence  where  the  man  was  killed,  just  the  same  as 
you  prove  contributory  negligence  where  the  man  was  not  killed. 
Any  contributory  negligence  defeats '  the  action,  and  in  case 
of  death,  you  have  got  to  show  that  the  man  was  really  of 
some  benefit  to  his  family  and  his  friends.  My  good  friend, 
Mr.  McKinstry,  thinks  that  the  feelings  of  the  family  where 
a  man  is  killed  should  be  sufficient  to  make  it  five  or  ten 
or  fifteen  thousand  dollars;  just  the  feelings.  The  law  is 
different  from  the  idea  my  friend  has.  It  is  solid,  cold  reason.  It 
makes  you  prove  your  facts,  makes  you  show  damages,  when  you 
ask  for  money,  and  you  have  got  to  show  by  the  evidence  that  you 
are  entitled  to  the  money  or  you  will  not  get  it.  They  speak  of 
wilful  injury.  Did  any  person  ever  hear  of  a  railroad  train  com- 
mitting a  wilful  injury  upon  a  passenger,  or  of  a  corporation  com- 
mitting a  wilful  injury  upon  a  person?  The  only  exemplary  dam- 
ages I  ever  heard  of  was  where  a  big  man  knocked  a  little  man 
down  in  an  assault  and  battery  case,  and  for  an  example  to  the 


August  16.]  CONSTITUTIONAL  CONVENTION.  623 

community  for  that  wilful,  deliberate  act,  the  big  man  was  made  to 
pay  for  it.  But,  Mr.  Chairman,  where  a  railroad  accident  takes 
place  through  carelessness,  gross  carelessness,  as  you  may  say,  of 
its  employes,  there  is  very  little  more  given  for  an  injury  resulting 
from  such  gross  carelessness  than  would  usually  be  given  in  the  most 
ordinary  cases  in  the  courts.  I  have  known  but  very  few  cases  of 
that  kind,  and  that  was  where  a  man  lost  his  arm  or  his  leg,  or  was 
injured  in  such  a  way  that  he  was  afterward  unable  to  support  him- 
self, or  earn  any  money.  But  when  the  man  is  dead,  unable  to  sup- 
port his  family,  or  be  of  any  benefit  to  those  around  him,  the  law 
requires  very  particular  proofs  in  those  matters.  Until  1847  we 
had  no  law  in  reference  to  the  killing  of  individuals.  It  was  altered 
in  1848,  and  now  the  limit  is  five  thousand  dollars,  and  very  seldom 
given.  The  records  of  the  courts  show  it,  although  there  has  been 
no  resolution  in  this  body  calling  upon  the  courts  to  state  how 
many  cases  had  a  recovery  of  five  thousand  dollars,  and  in  how 
many  cases  the  recovery  was  less  than  that  amount,  but  I  have  the 
assurance  of  a  great  many  judges  in  this  body,  and  lawyers,  that  it 
very  seldom  reaches  the  sum  of  five  thousand  dollars. 

Mr.  Nichols  —  Mr.  Chairman,  I  do  not  wish  to  detain  the  Con- 
vention with  a  discussion  of  this  question  at  any  length  whatever. 
The  subject  has  been  gone  over  with  great  care,  and  some  of  the 
arguments,  that  to  me  were  impressive  and  should  be  controlling, 
were  under  consideration  when  the  question  was  before  the  Con- 
vention on  a  former  day.  I  do  not  agree  with  Mr.  Dickey,  in  his 
suggestion  that  the  amendment  proposed  by  Mr.  Cassidy  is  intro- 
duced for  the  purpose  of  defeating  the  bill.  I  think,  however,  that 
the  amendment  should  not  prevail,  because  it  is  more  a  matter  of 
detail  than  substance,  and  does  not  bear  upon  the  principle  that  is 
under  discussion. 

There  are  two  reasons,  Mr.  Chairman,  other  than  those  proposed, 
that  have  been  suggested,  which  lead  me  to  believe  that  this  propo- 
sition should  find  its  way  into  the  organic  law  of  the  State.  I 
believe  that  it  will  work  justice  to  the  injured,  and  at  the  same  time 
be  a  protection  to  the  corporation  or  the  party  causing  the  injuries. 
There  can  be  very  little  doubt,  I  apprehend,  that  the  fact  of  a  limita- 
tion upon  the  recovery,  in  case  of  death,  has  worked,  and  will  here- 
after work,  a  very  serious  injury  to  certain  individuals  who  may 
come  within  its  provisions.  Why?  Because  it  is  equally  apparent 
that  the  life  of  some  men  ought  not  to  be  and  cannot  be  measured 
by  a  five  thousand  dollar  recovery.  The  last  speaker  affirms  that  it 
very  rarely  reaches  five  thousand  dollars.  Assume  that  to  be  true, 
still  the  proposition  is  not  met,  if  the  value  of  the  life  taken  does  not 


624  REVISED  RECORD.  [Thursday, 

reach  five  thousand  dollars,  the  failure  to  recover  that  sum  certainly 
does  not  establish  an  injury  to  the  party  suffering  the  injury.  I  do 
not  believe  that  this  proposition  was  originally  intended  as  an  attack 
upon  corporations.  I  do  not  believe,  as  Mr.  Barrow  does,  and  as 
he  argued  here,  that  the  sole  effect  of  this  proposition  is  to  give  to  a 
certain  class  of  our  community,  who  are  disposed  to  introduce  dis- 
cord and  disturbance  in  our  midst,  greater  powers,  rights,  advan- 
tages as  against  corporations.  I  can  see  no  reason  and  no  justifica- 
tion for  the  position  which  he  takes.  We  try  cases  involving  the 
question  of  negligence,  so  far  as  damages  are  concerned,  with  a 
great  degree  of  indifference,  I  believe.  It  is  incidental  to  the  cause 
of  action.  We  present  our  proofs  upon  the  merits  of  a  case,  then 
we  give  a  very  little  evidence  as  to  the  history  of  the  man  injured  or 
killed,  and  there  we  rest,  and  leave  it  to  the  jury  to  say  within  the 
limits  of  nothing  and  five  thousand  dollars  what  the  recovery  shall 
be.  I  believe  if  you  introduce  this  proposition,  make  it  the  law  of 
the  State,  every  lawyer  will  feel  called  upon  to  try  with  more  care, 
with  more  accuracy,  to  prepare  with  more  care  and  more  zeal,  the 
single  question  of  the  value  of  the  life.  If  there  is  a  cause  of  action 
or  a  right  of  recovery,  tell  me  why  there  should  be  a  limit  upon  it, 
when  there  is  no  limit  to  its  value.  We  establish  the  limit  by  the 
evidence  given.  The  jury  considers  it  carefully,  and  finds  that  the 
value  of  the  Ife,  unrestricted  by  legislative  enactment,  is  so  many 
dollars.  Does  that  work  an  injustice  to  the  individual  or  the  cor- 
poration? If  so,  why?  It  does  justice  to  the  individual  sustaining 
the  loss.  If  it  is  just  to  the  individual,  I  say  it  is  likewise  just  to 
the  corporation.  There  is  no  difference  between  the  two.  Work- 
ing a  justice  to  one  is  not  establishing  an  injustice  as  against  the 
other.  I  am  willing  to  trust  to  the  courts  the  question  of  whether 
recovery  shall  be  sustained  or  set  aside  as  excessive.  It  is  your 
experience  and  mine,  and  the  experience  of  all  lawyers,  that  the 
courts  of  review  do  not  hesitate  to  say  this  recovery  exceeds  the 
bounds,  that  recovery  is  not  supported  by  the  facts,  and  I  put  the 
judges,  the  courts,  between  injustice  to  the  man  injured  and  injus- 
tice to  the  corporation,  or  the  individual  causing  the  injury.  If  you 
will  take  occasion  to  look  over  the  cases  that  are  upon  the  records 
in  other  States,  where  there  is  no  limitation,  you  will  find  that  recov- 
eries run  no  higher  than  they  do  in  the  State  of  New  York.  In  the 
State  of  Michigan,  for  instance,  the  recoveries  differ  but  very  little 
in  amount  on  similar  facts,  from  those  found  upon  the  records  in  the 
courts  of  the  State  of  New  York.  Now,  that  establishes  this  propo- 
sition that  the  juries  and  the  courts,  irrespective  of  the  limitation 
that  we  impose,  will  deal  justly  between  the  parties  interested.  This 


August  16.]  CONSTITUTIONAL  CONVENTION.  625 

consideration  should  be  controlling  upon  the  merits  of  the  question, 
and  it  does  not  matter,  it  seems  to  me,  whether  this  amendment  to 
the  proposition  or  that  proposition  prevails,  so  long  as  we  get  from 
the  person  who  has  this  bill  in  charge,  a  proposition  that  will  estab- 
lish the  fact  conclusively,  as  a  matter  of  law  in  the  State  of  New 
York,  that  there  shall  be  no  limitation  upon  the  amount  of  recovery 
in  cases  of  negligent  killing. 

Mr.  Marshall  —  Mr.  Chairman,  1  think  it  is  pretty  well  settled 
that  the  opinion  of  this  body  is  that  limitations  upon  the  amount 
of  recovery,  in  cases  which  flow  from  injuries  resulting  in  death, 
should  cease.  It  is  also,  it  seems  to  me,  the  idea  of  everybody  pres- 
ent who  has  expressed  himself  upon  this  subject  in  favor  of  such 
limitation,  that  the  right  of  action  now  existing,  shall  be  continued. 
The  fear  is  felt  that  perhaps  the  right  of  action  might  at  some  time 
be  abrogated  by  the  Legislature.  To  cover  both  of  these  ideas  I 
have  framed  a  provision  which  I  will  read :  "  The  right  of  action  to 
recover  damages  for  injuries  resulting  in  death,  now  existing,  shall 
never  be  abrogated;  and  the  amount  recoverable  shall  not  be  subject 
to  any  statutory  limitation."  The  right  of  action  which  now  exists 
is  well  defined  in  the  statute.  We  all  know  what  that  is.  It  has 
been  the  subject  of  adjudication  in  this  State  for  the  last  forty 
years.  There  is  no  doubt  as  to  the  meaning  of  this  language,  and, 
therefore,  by  reference  to  the  cause  of  action  now  existing,  and 
declaring  that  the  right  of  action  shall  further  continue,  it  avoids 
any  circumlocution  which  has  been  suggested  by  some  of  the 
amendments  here.  The  concluding  phrase  is,  that  the  amount 
recoverable  can  never  be  subject  to  any  statutory  limitation.  That 
covers  the  idea  that  is  suggested  in  the  report  of  the  minority  of  the 
committee,  which  had  this  matter  under  consideration. 

Mr.  Cassidy  —  Mr.  Chairman,  I  am  willing  to  withdraw  my 
amendment  and  accept  Mr.  Marshall's  amendment  in  its  stead. 

The  Chairman  —  Mr.  Cassidy  withdraws  the  amendment  offered 
by  him  and  accepts  the  -amendment  offered  by  Mr.  Marshall. 

Mr.  Root  —  Mr.  Chairman,  I  had  prepared  an  amendment  or  a 
substitute  which  seemed  to  be  adequate  to  meet  the  evident  wishes 
of  the  Convention  in  regard  to  this  matter,  but  after  a  conference 
with  Mr.  Marshall,  and  a  comparison  of  our  several  papers,  I  am 
satisfied  that  his  paper  is  better  framed  to  accomplish  the  object  of 
the  Convention,  and  still  preserve  all  the  benefits  which  the  people 
of  the  State  have  derived  from  the  settled  construction  which  the 
courts  have  placed  upon  the  statutes  that  have  been  on  our  stat- 
40 


626  REVISED  RECORD.  [Thursday, 

ute  books  for  so  many  years.  I,  therefore,  refrain  from  offering  the 
amendment  as  I  have  drawn  it,  and  shall  support  that  of 
Mr.  Marshall. 

The  Chairman  —  Does  the  Chair  understand  Mr.  Marshall  to 
offer  that  as  a  substitute? 

Mr.  Marshall  —  I  do. 

The  Chairman  —  Then  that  will  be  received  and  not  acted  upon 
until  after  the  amendment  offered  by  Mr.  McKinstry. 

Mr.  Marshall  —  I  understood  that  the  substitute  was  accepted. 

The  Chairman  —  Mr.  McKinstry  has  not  accepted  it.  The  ques- 
tion is  on  Mr.  McKinstry's  amendment. 

Mr.  A.  B.  Steele  —  Mr.  Chaiman,  do  I  understand,  if  this  amend- 
ment is  voted  down,  that  then  we  are  to  act  on  Mr.  Marshall's 
substitute? 

The  Chairman  —  The  question  will  then  recur  on  the  substitute 
offered  by  Mr.  Marshall. 

Mf .  Veeder  —  Mr.  Chairman,  I  want  to  say  on  behalf  of  the 
minority  of  the  Committee  on  Preamble,  that  if  this  amendment  is 
voted  down,  we  are  prepared  to  accept  Mr.  Marshall's  substitute. 

The  Chairman  put  the  question  on  the  adoption  of  Mr.  McKins- 
try's amendment,  and  it  was  determined  in  the  negative. 

The  Chairman  put  the  question  on  the  adoption  of  the  substitute 
offered  by  Mr.  Marshall,  and  it  was  determined  in  the  affirmative. 

Mr.  Dickey  —  Mr.  Chairman,  I  move  that  the  committee  now 
rise,  report  this  amendment  favorably  to  the  Convention,  and  rec- 
ommend its  passage. 

The  Chairman  put  the  question  on  Mr.  Dickey's  motion,  and  it 
was  determined  in  the  affirmative. 

Whereupon  the  committee  rose,  and  Vice-President  Alvord 
resumed  the  chair. 

Mr.  C.  B.  McLaughlin  —  Mr.  President,  the  Committee  of  the 
Whole  have  had  under  consideration  the  proposed  constitutional 
amendment  (printed  No.  380),  entitled,  "  Proposed  constitutional 
amendment  to  amend  article  I  of  the  Constitution,  as  to  damages 
for  loss  of  human  life;"  have  gone  through  with  the  same,  have 
made  an  amendment  thereto,  and  instructed  the  chairman  to  report 
the  same  to  the  Convention  and  recommend  its  passage. 

The  President  pro  tern,  put  the  question  on  agreeing  with  the 
report  of  the  committee,  and  it  was  determined  in  the  affirmative. 


August  16.]  CONSTITUTIONAL  CONVENTION.  627 

The  President  pro  tern. —  The  report  is  agreed  to,  and  the  amend- 
ment will  be  sent  to  the  Committee  on  Revision. 
General  orders  of  the  day. 
The  Secretary  called  general  order  No.  17. 
No.  17  was  not  moved. 

The  Secretary  called  general  order  No.  18,  introduced  by 
Mr.  Marks. 

Mr.  Marks  —  Mr.  President,  I  move  general  order  No.  18. 

The  Convention  resolved  itself  into  a  Committee  of  the  Whole, 
and  Mr.  Durfee  took  the  chair. 

The  Chairman  —  The  Convention  is  now  in  Committee  of  the 
Whole  on  general  order  No.  18  (introductory  No.  364),  introduced 
by  Mr.  Marks,  to  amend  section  7  of  article  i  of  the  Constitution, 
relating  to  the  taking  of  private  property  for  public  use. 

Mr.  Marks  —  Mr.  Chairman,  the  fifty-eight  delegates  who  voted 
to  disagree  with  the  adverse  report  of  the  Committee  on  Preamble 
when  this  question  was  before  the  Convention  in  another  form,  was 
evidence  to  me  that  many  delegates  were  of  the  opinion  that  no 
opportunity  should  be  afforded  to  private  corporations  by  our  funda- 
mental law  to  obtain  legislation  exclusively  in  their  interests,  or 
legislation  which  deprives  the  people  of  their  substantial  right  to  a 
jury  tral.  I  now  present  the  question  to  you  in  another  form  for 
the  purpose  of  accomplishing  the  same  object  I  had  in  view  when 
I  presented  the  former  amendment,  and  moved  to  disagree  with  the 
report  of  the  committee,  namely,  to  secure  to  the  people  of  the  State 
of  New  York  the  right  to  a  trial  by  jury  in  proceedings  where  pri- 
vate corporations  take  property.  My  endeavor  was  and  is  to  pre- 
sent an  amendment  to  this  Convention  which,  in  any  form,  will 
secure  the  approval  of  the  majority  of  the  delegates  and  secure  to 
the  people  of  the  State  of  New  York  that  right  to  a  jury  trial.  The 
majority  of  this  Convention  declared,  when  they  confirmed  the 
adverse  report  of  the  Committee  on  Preamble,  by  a  vote  of  93  to  58, 
that  the  right  to  a  jury  trial  in  these  proceedings  should  not  be  so 
regulated  as  to  require  a  waiver  by  both  parties.  Many  delegates 
who  voted  to  sustain  the  former  report,  stated  to  me  after  the  vote 
had  been  taken,  that  railroad  companies,  more  particularly  the  ele- 
vated railroad  companies  of  New  York  and  Brooklyn,  in  actions  to 
recover  damages  for  loss  of  rent  and  damages  to  the  fee,  had  been 
endeavoring  to  obtain  jury  trials  for  the  purposes  of  delaying  and 
retarding  litigation,  and  that  these  corporations  and  others  might 
make  use  of,  and  could  insist  upon,  the  provision  requiring  a  waiver 


628  KK VISED  RECORD.  [Thursday, 

by  botli  parties,  and  unnecessarily  burden  the  courts  and  calendars 
of  the  courts  with  their  thousands  of  cases,  and  deprive  litigants  in 
other  actions  of  an  opportunity  to  reach  their  cases.  They  sug- 
gested that  if  the  corporations  in  those  cities  saw  that  anything  was 
to  be  gained  and  the  owner  of  the  property  injured  by  delay,  they 
might  possibly  bring  these  condemnation  proceedings  (which  they 
have  always  brought  before  three  commissioners)  to  a  jury  trial. 
The  amendment  which  I  presented  did  not  apply,  and  would  not 
have  been  held  to  apply,  to  actions  to  recover  damages  for  rent  or 
damages  to  the  fee,  which,  it  is  claimed,  these  corporations  would 
like  to  try  before  juries.  These  condemnation  proceedings  are 
entirely  different  actions  and  proceedings  from  those  brought  to 
recover  damages  for  rent  or  to  the  fee.  But,  leaving  out  the  ques- 
tion whether  or  not,  at  some  time,  the  elevated  railroad  companies 
of  New  York  and  Brooklyn  might  have  taken  advantage  of  the  pro- 
vision requiring  a  waiver  by  both  parties  and  refused  to  waive  a  jury 
trial,  to  the  injury  and  delay  of  the  people,  and  after  consultation 
with  some  of  the  ablest  gentlemen  in  this  Convention,  I  came  to  the 
conclusion  that  this  question  and  the  suggested  impracticability  of 
the  working  of  the  system  in  the  cities  of  New  York  and  Brooklyn, 
if  corporations  were  given  the  right  to  a  jury  trial,  could  be  averted, 
and  the  same  result  which  I  sought  to  accomplish  by  my  amend- 
ment, to  give  to  the  people  the  right  of  a  jury  trial,  could  be  accom- 
plished by  giving  to  the  owner  of  the  property,  whose  land  was 
forcibly  taken  from  him,  the  right  to  demand  such  trial.  I  was  not 
particular  about  the  form  of  the  amendment,  so  long  as  it  secured 
that  result,  and  I  presented  an  amendment  to  the  Convention  that, 
when  private  property  shall  be  taken  for  any  public  use,  the  com- 
pensation to  be  made  therefor,  when  such  compensation  is  not  made 
by  the  State,  shall  be  ascertained  by  a  jury  when  required  by  the 
owner  of  the  property,  and  if  not  so  required,  such  compensation 
shall  be  ascertained  by  not  less  than  three  commissioners,  appointed 
by  a  court  of  record,  as  shall  be  prescribed  by  law.  I  shall  ask  this 
Convention  to  further  except  municipalities  and  other  branches  of 
the  State  government,  which  are  now  excepted  by  the  Code  of  Civil 
Procedure.  My  reasons  for  excepting  them  I  have  before  fully 
stated.  My  amendment  was  referred  to  the  Committee  on  Pream- 
ble, which  has  now  reported  it  as  I  presented  it  favorably,  and 
declared  that  the  principle  should  be  embodied  in  our  Constitution 
in  the  interest  of  the  people.  I  believe  this  subject  is  one  which 
calls  for  action  on  the  part  of  this  Convention,  and  that  we  should 
take  from  our  Constitution  a  provision  which  corporations  can  use 
to  obtain  legislation  and  decisions  solely  in  their  interest.  No  dele- 


August  16.]  CONSTITUTIONAL  CONVENTION.  629 

gate  can  say  a  word  against  the  principle  for  which  I  contend,  and 
which  I  claim  should  be  embodied  in  our  Constitution,  that  the  peo- 
ple's property  should  not  be  taken,  that  the  rights  of  citizens,  be  they 
ever  so  humble,  shall  not  be  invaded  by  private  corporations,  until 
the  people  have  had  an  opportunity  of  appealing  to  their  peers  in 
the  jury-box.  The  adoption  of  this  amendment  will  be  an  additional 
safeguard  wrapped  around  the  citizen,  to  which  he  may  resort  when 
he  fears  that  his  cherished  home,  which  probably  no  amount  of 
money  could  have  purchased,  or  his  little  land,  which  represents  the 
savings  of  a  lifetime,  or  his  little  business,  in  which  his  entire  little 
fortune  is  invested,  his  all,  is  in  danger  from  the  inroads  of  private 
corporations.  He  will  feel  secure  when  he  knows  he  can  appeal 
to  the  highest  tribunal  invented  or  devised  by  man  to  administer 
justice:  a  jury,  who,  he  feels,  will  do  unto  him  as  he  would  do  unto 
them,  fairly  and  impartially,  without  fear,  without  favor,  without 
interest,  without  prejudice,  when  it  is  decided  that  he  must  surren- 
der to  the  demands  of  private  corporations.  The  fifty-eight  dele- 
gates who  voted  to  disagree  with  the  adverse  report  of  the  commit- 
tee before  voted  substantially  to  secure  to  the  people  the  right 
to  a  trial  by  jury  to  fix  the  compensation  for  property  taken  by  cor- 
porations in  these  proceedings.  They  stamped  their  approval  of 
the  principle  that  it  is  the  interest  of  the  people  that  we  have  met, 
and  that  their  rights  should  be  secured  to  the  utmost  limit,  and  they 
stamped  their  disapproval  of  the  practice  of  permitting  private  cor- 
porations to  select  their  tribunal.  And  I  am  here  to-day  again  main- 
taining the  principle  that  private  property  shall  not  be  taken  by 
private  corporations  unless  its  value  is  fixed  by  a  jury,  if  the  people 
desire;  and  earnestly  and  sincerely  endeavoring  to  secure  for  the 
people  of  the  State  the  same  right  to  a  jury  trial  which  they  enjoy  in 
any  other  civil  action.  That  is  my  sole  and  only  object.  Wherever 
I  go,  whomever  I  ask,  I  am  told  it  is  right,  it  is  just,  it  is  proper,  that 
the  people  should  have  that  right,  and  you  may  rely  upon  it,  Mr. 
Chairman  and  gentlemen  of  the  Convention,  that  if  you  give  the 
people  that  privilege  they  will  not  abuse  it.  I  think  I  have  made  it 
clear  by  my  arguments  heretofore  made  that  this  section  7  of  the 
Constitution  does  not  guarantee  to  the  people  the  right  to  a  jury 
trial;  and  I  believe  I  have  demonstrated  that  the  manner  of  fixing 
compensation  in  these  proceedings  should  not  be  permitted  to 
depend  upon  legislative  will  or  corporate  influence.  The  Constitu- 
tion is  not  a  play  toy  or  a  foot  ball  to  be  kicked  around  as  the 
Legislature  may  see  fit,  nor  should  its  provisions  be  left  indefinite 
and  uncertain,  so  that  they  may  be  annulled  or  rendered  inoperative. 
It  should  plainly  state  that  in  cases  of  municipalities  or  the  State,  or 


630  REVISED  RECORD.  [Thursday, 

any  branch  of  the  State  government,  commissioners  or  a  jury  shall 
fix  the  compensation,  as  the  Legislature  shall  decide  may  be  best, 
in  different  parts  of  the  State,  and  it  should  plainly  state  that  in 
cases  where  private  corporations  take  property  a  jury  shall  fix  it  if 
the  people,  the  owners  of  the  property,  so  desire.  It  should  not  be 
kft  one  way  or  the  other,  as  one  Legislature  may  decide,  and  as  the 
next  Legislature,  under  some  influences,  may  be  induced  to  change 
it.  Cooley,  on  Constitutional  Limitations,  in  speaking  of  the  sub- 
ject of  eminent  domain,  says:  "The  case  is  not  one  where,  as  a 
matter  of  right,  the  party  is  entitled  to  a  trial  by  jury,  unless  the 
Constitution  has  provided  that  tribunal  for  the  purpose."  Story, 
on  the  Constitution,  says:  "  One  of  the  fundamental  objects  of  every 
good  government  must  be  the  due  administration  of  justice,  and 
how  vain  it  would  be  to  speak  of  such  an  administration,  when  all 
property  is  subject  to  the  will  or  caprice  of  the  Legislature  and  the 
rulers."  Having  in  view  the  people's  cause  and  their  rights,  and 
being  opposed  to  any  existing  law  in  our  Constitution,  or  any  law 
which  may  be  proposed  in  this  Convention  which  in  any  wise  grants 
or  tends  to  grant  to  private  corporations,  exclusive  privileges 
whereby  the  people  are  placed  in  their  power,  which  views  and  senti- 
ments I  hope  are  shared  by  every  delegate  in  this  Convention,  I  feel 
that  I  would  not  have  done  my  duty,  if  I  did  not  attempt  to  correct 
—  I  feel  that  you  would  not  have  done  your  duty,  if  you  did  not 
correct  a  system  which  is  wrong,  and  opposed  to  all  principles  of 
equity  and  justice,  if  you  did  not  endeavor  to  secure  to  the  people 
more  power,  if  you  did  not  prevent  their  property  being  taken 
unless  its  value  was  fixed  by  a  jury  as  damages  are  assessed  in  other 
actions,  if  you  did  not  endeavor  to  give  them  the  right  to  say  what 
they  wish,  and  not  to  corporations  to  dictate.  I  ask  for  the  decision 
of  men  of  intelligence  and  integrity  on  a  strictly  people's  measure, 
in  the  broadest  sense  in  which  that  term  can  be  used.  You  are  the 
judges  of  it.  You  know  what  is  in  the  interests  of  corporations, 
what  is  in  the  interests  of  the  people.  Corporations  did  not  send  us 
here.  The  people  did.  Our  enacting  clause  is,  "  The  delegates  of 
the  people  of  the  State  of  New  York,  in  Convention  assembled,  do 
propose  as  follows."  And  our  duty  is  to  propose  to  the  people,  to 
give  to  those  whom  we  represent,  what  is  strictly  and  justly  their 
due.  Do  not  defeat  the  favorable  report  of  your  committee,  and 
have  it  said  that  you  refused  to  legislate  for  the  people.  We  should 
do  something  to  secure  the  people  of  the  State  against  the  imposi- 
tions and  exactions  of  corporations  in  these  proceedings.  By 
adopting  this  amendment,  as  it  is  now  reported  from  the  Committee 
on  Preamble,  you  carry  out  the  principle  involved;  you  can  do  no 


August  16.]  CONSTITUTIONAL  CONVENTION.  631 

harm  to  anyone;  it  is  fair,  and  you  place  the  right  to  demand  a  jury 
trial  in  the  people,  where  it  belongs.  Not  a  delegate  in  this  Conven- 
tion can  make  the  objection  that  that  amendment,  as  it  stands  to-day, 
can  work  injuriously  to  the  people,  or  that  any  corporation  can  use 
it  to  its  advantage,  to  the  injury  of  the  people.  Secure  and  guarantee 
to  the  people,  by  the  supreme  law  of  the  State,  a  right,  sacred  and 
secure  against  the  oppressive  exactions  of  private  corporations  and 
their  usurpation  of  powers.  Teach  private  corporations,  who,  by 
reason  of  their  greater  strength,  are  enabled  to  appropriate  property 
for  private  gain  and  not  for  the  public  use,  that  although  they  may 
control  Legislatures,  and  prevent  them  from  passing  laws  which 
secure  the  rights  of  the  people,  that  although  they  may,  by  hidden 
and  sneaky  methods,  obtain  exclusive  privileges  whereby  the  peo- 
ple are  placed  in  their  power,  that  there  is  yet  a  supreme  power  in 
the  State  which,  though  it  meets  but  once  in  a  generation,  can  lay 
its  hands  upon  them  and  protect  the  interests  of  the  people;  a 
power  which  can  say  to  them:  "Your  rights  and  your  powers  have 
been  growing  too  rapidly  for  the  people's  good,  your  control  of 
Legislatures,  your  selection  of  your  own  tribunal,  your  control  and 
supervision  over  the  appointment  of  commissioners  favorable  to 
your  interests,  your  control  of  these  commissioners  to  obtain  favor- 
able decisions  shall  cease.  You  shall  not  invade  private  rights, 
except  through  the  door  of  the  jury-box."  Let  it  be  known  that 
the  Empire  State  of  New  York,  with  its  motto  of  Excelsior,  will  not 
permit  thirty-nine  other  States  in  the  Union  to  excel  it  in  making 
laws  for  the  people  which  guarantee  to  them  the  protection  of  the 
precious  privilege  of  a  jury  trial  for  obtaining  justice  against  cor- 
porations in  these  proceedings. 

Mr.  Hawley  —  Mr.  Chairman,  I  desire,  the  committee  will  be  glad 
to  hear,  not  to  make  a  speech,  but,  with  your  permission,  to  make 
an  inquiry  of  the  proposer  of  this  amendment.  In  the  argument 
which  has  been  addressed  to  the  committee,  we  have  heard,  with 
some  degree  of  repetition,  about  the  oppressions  and  exactions  of 
private  corporations.  What  I  desire  to  find  out  is  whether  this  pro- 
posed amendment  is  not  broad  enough  in  its  scope  and  in  its  lan- 
guage to  include  all  public  corporations  as  well,  municipal  corpora- 
tions and  all  sorts. 

Mr.  Marks  —  As  it  stands  now,  it  is  broad  enough,  but,  I  think, 
the  public  corporations  should  be  excepted.  I  think  there  should 
be  a  provision  that  when  such  compensation  is  not  made  by 
the  State  or  municipalities,  the  branches  of  the  State  government, 
and  which  are  set  forth  in  the  Code  of  Civil  Procedure,  it  will  except 
those  and  apply  only  to  private  corporations.  I  do  not  believe  in 


632  REVISED  RECORD.  [Thursday, 

putting  the  State  or  municipalities,  which  take  property  for  strictly 
public  use-,  to  the  necessity  of  jury  trials,  and  I  am  ready  to  pro- 
pose an  amendment,  or,  if  any  other  delegate  desires  to  do  so,  I  shall 
be  pleased  to  have  him  do  so,  excepting  the  proceedings  to  con- 
demn property  which  the  Code  exempts,  such  as  cities,  villages  and 
towns. 

Mr.  Towns  —  Mr.  Chairman,  I  would  ask  the  gentleman  why  he 
wishes  to  make  this  distinction  between  private  and  public  corpora- 
tions, if  he  thinks  that  it  is  the  duty  of  this  Convention  to  distinguish 
between  private  and  public  corporations,  if  they  wish  to  take  land 
for  a  public  purpose. 

Mr.  Schumaker  —  Mr.  Chairman,  I  will  tell  my  friend  the  reason. 
In  some  instances  there  are  several  thousand  property  holders.  In 
a  park  in  Brooklyn  there  are  almost  ten  thousand.  If  there  are  ten 
thousand  property  holders,  where  are  you  going  to  get  your  judges 
from?  It  will  take  ten  thousand  years. 

Mr.  Towns  —  That  is  just  the  point  I  was  going  to  bring  out.  Tt 
will  take  from  fifteen  to  twenty  years  to  settle  these  questions.  The 
elevated  railroads  went  through  the  Legislatures  five  years  succes- 
sively, and  it  cost  them  all  the  way  from  fifty  to  a  hundred  thousand 
dollars  to  have  this  very  measure  passed  through  the  Legislature. 

Mr.  Schumaker  —  Mr.  Chairman,  I  just  wish  to  say  a  word  in 
answer  to  my  friend.  If  he  will  look  at  the  bill,  he  will  see  that  it 
is  optional  to  have  a  jury  or  to  have  the  old  commission.  The  prop- 
erty owners  simply  have  the  commission.  They  can  take  the  com- 
mission from  the  court  or  can  call  for  a  jury,  and,  if  they  are  wise, 
they  will  take  a  good  commission  if  they  can  get  it. 

Mr.  Towns  —  Mr.  Chairman,  there  is  nothing  to  prevent  this  cor- 
poration from  buying  lots  along  the  proposed  route  and  exercising 
that  option.  I  venture  to  say  there  has  never  been  a  report  of  a 
commission,  except  in  a  few  instances,  which  has  been  promptly  set 
aside  by  the  courts,  where  a  commission  has  not  given  the  full  value 
of  the  property  which  it  took  for  public  purposes.  I  cannot  see 
w7hy  gentlemen  of  this  Convention  should  stand  upon  the  floor  and 
say  that  the  price  of  property  or  the  means  or  method  of  taking  it 
should  be  different  as  between  private  corporations  and  public 
corporations.  , 

Mr.  Schumaker  —  Mr.  Chairman,  the  gentleman  still  does  not 
understand.  The  railroad  companies,  the  people  that  take  the  prop- 
erty, the  corporations,  have  nothing  to  say  about  a  jury.  It  is  given 
entirely  to  the  property  holder  to  claim  a  commission  or  a  jury.  Is 
that  satisfactory? 


August  16.]  CONSTITUTIONAL  CONVENTION.  633 

Mr.  Towns  —  No,  it  is  not.  What  is  to  prevent  the  railroad  cor- 
porations from  buying  the  property  along  the  route? 

Mr.  Marks  —  Mr.  Chairman,  suppose  they  did  buy  property  along 
the  route;  they  would  not  seek  to  condemn  their  own  property.  If 
they  buy  property  along  the  route,  how  does  it  injure  anybody  else? 
I  do  not  think  there  is  anything  in  that.  The  gentleman  himself 
comes  from  the  part  of  the  State  where  the  abuse  is  the  greatest. 
The  judges  of  the  Supreme  Court,  time  after  time,  have  set  aside 
the  awards  of  these  commissioners.  Judge  Gaynor,  of  the  Supreme 
Court,  in  a  decision  handed  down  only  a  few  days  ago,  setting  aside 
one  of  these  six  cents  awards,  said,  as  the  New  York  Sun  of  August 
i,  1894,  reports  it:  "To  confirm  the  award  of  these  commissioners, 
would  make  the  owners  of  the  property  affected  justly  question 
whether  their  rights  are  safe  in  the  administration  of  justice.  The 
facts  show  that  these  flats  are  more  or  less  distressing  places  to  live 
in,  from  the  smoke  and  impurity  of  the  air  from  the  railroad,  and 
the  consequent  depreciation  and  loss  of  rents,  from  the  unwilling- 
ness of  tenants  to  live  in  them,  was  proved." 

I  think  the  principle  is  fair.  It  gives  the  right  to  the  people  to 
demand  a  jury  trial.  I  want  to  go  farther  and  amend  the  section 
by  putting  in,  after  the  word  "  State,"  "  municipalities."  Or,  if  the 
gentleman  will  wait  for  one  moment,  I  will  take  the  exact  language 
of  the  Code. 

The  Chairman  —  If  the  gentleman  will  put  his  amendment  in 
writing,  and  send  it  to  the  desk,  it  will  be  considered. 

Mr.  Powell  —  Mr.  Chairman,  just  a  word  with  regard  to  the  sug- 
gestion made  by  the  gentleman  from  Kings  (Mr.  Towns).  The  idea 
is  that  if  some  corporation  wants  to  start  a  line  of  railroad  or  an 
enterprise  of  that  character,  some  rival  corporation  will  step  in 
and  buy  up  land  in  its  vicinity  in  order  to  delay  its  work.  How 
will  it  delay  its  work?  As  matter  of  fact,  where  private  corporations 
take  lands  for  their  use,  they  take  them  and  wait  very  often  for  long 
years  after  they  have  had  the  lands  in  their  possession  before  they 
pay  for  them.  They  are  not  required  to  pay  for  the  land  before 
they  bring  it  into  use  and  employ  it  for  the  purposes  for  which  they 
were  organized.  It  would  be  absolutely  impossible  for  one  corpo- 
ration to  delay  another.  There  might  be  a  delay  occasionally  in 
collecting  the  money.  We  might  suppose  that  one  corporation  was 
foolish  enough  to  go  in  and  buy  land  that  is  to  be  condemned  by 
another  corporation  for  the  very  purpose  of  delay.  If  any  corpora- 
tion wishes  to  do  that,  it  is  its  privilege  to  do  so,  but  the  right  of 
private  individuals  will  in  no  way  be  affected.  I  think,  perhaps,  it 


634  REVISED  RECORD.  [Thursday, 

is  well  that  the  Convention  should  think  for  a  moment  of  the  history 
of  this  proposed  amendment  in  its  various  forms.  In  the  first  place, 
the  amendment  was  proposed  by  Mr.  Marks,  which  provided  that  in 
all  cases  where  land  was  taken  by  private  corporations,  that  the 
value  of  the  land  should  be  determined  by  a  jury.  That  amendment 
was  referred  to  the  Judiciary  Committee.  The  Judiciary  Commit- 
tee having  it  under  consideration,  I  presume,  seeing  that  in  that  form 
it  would  be  for  the  interests  of  the  elevated  railroads  in  the  city  of 
New  York,  reported  it  adversely;  but  the  Judiciary  Committee  made 
the  mistake  of  not  telling  the  Convention  why  they  reported  it 
adversely.  They  kept  that  information  to  themselves,  and  so,  with- 
out having  any  opportunity  whatever  to  amend  this  proposed 
amendment,  so  that  it  would  not  be  for  the  benefit  of  the  elevated 
railroads  of  New  York  city,  the  amendment  was  voted  down.  Now, 
I  ask  the  gentlemen  of  the  Convention  to  look  at  the  question  for 
one  moment  in  another  light,  and  see  if  this  proposed  amendment  is 
not  fair.  Bear  in  mind,  that  while  this  gives  to  the  owner  of  lands 
the  selection  of  the  tribunal  which  shall  determine  its  value,  the 
owner  of  the  land  never  has  any  choice  as  to  what  property  shall  be 
taken  away  from  him  by  the  private  corporation.  We  will  suppose 
I  own  a  farm,  and  some  railroad  enterprise  comes  along  and  pro- 
poses to  run  this  railroad  through  my  farm.  Do  they  ask  me  where 
they  shall  be  permitted  to  go  through  my  farm?  Do  they  make  any 
bargain  with  me?  Will  they  consult  me  at  all?  Not  so.  They 
simply  send  their  engineers  and  surveyors  upon  my  land,  and  if  they 
want  to  run  through  my  house,  they  run  through  it;  and  if  they 
want  to  go  through  my  barn,  they  go  through  that,  and  they  cut 
their  road  through  any  part  of  my  property  that  they  see  fit.  Gentle- 
men, give  to  the  corporation  that  power  to  select  just  what  it  may 
see  fit  to  take  from  my  property,  giving  me  no  voice  whatever  in 
the  matter,  is  it  not  fair,  is  it  not  just,  that  in  determining  the  value  of 
what  they  have  taken,  I  shall  have  the  right  of  selecting  the  tribunal? 
And  after  we  have  glorified  the  jury  in  the  manner  that  we  have 
done,  is  it  not  my  privilege,  as  a  citizen  of  the  State,  if  I  see  fit,  to 
demand  that  those  damages  shall  be  determined  by  a  jury?  Now, 
gentlemen,  this  proposed  amendment  has  created  some  little  com- 
ment on  the  part  of  the  press,  and  it  has  been  insinuated  that  when 
it  was  first  brought  in  it  was  proposed -for  the  benefit  of  the  elevated 
railways  of  the  city  of  New  York.  Possibly  in  the  form  in  which  it 
was  introduced,  it  might  have  inured  to  their  benefit,  but  such  I 
know  was  not  the  intention  of  the  introducer.  Now,  however,  it 
comes  before  this  Convention  in  a  different  form,  robbed  of  any- 
thing in  it  of  that  character  which  might  have  made  it  repellant  to 


August  16.]  CONSTITUTIONAL  CONVENTION.  635 

us  or  repugnant  to  the  people  who  are  to  pass  upon  it.  I  read  just 
a  few  words  from  the  "  Mail  and  Express/'  which  devoted  a  long 
editorial  to  the  consideration  of  this  proposed  amendment.  Refer- 
ring to  commissions  appointed  by  the  courts  to  determine  the  value 
of  property  taken  by  private  corporations,  it  uses  this  language: 
"  Such  boards  are,  of  course,  appointed  with  a  view  to  the  special 
fitness  of  their  members  to  pass  upon  questions  of  values,  which 
are  not  by  any  means  easy  to  present  to  a  jury  or  easy  for  an  ordi- 
nary jury  to  determine."  Selected,  mark  you,  for  their  special  fitness. 
I  emphasized  those  words.  They  have  been  selected  apparently 
in  the  city  of  Brooklyn  for  their  special  fitness,  and  these  commis- 
sions have  gone  to  certain  parts  of  the  city  of  Brooklyn  condemn- 
ing easements  which  had  been  taken  away  by  the  elevated  roads, 
and  in  case  after  case  have  given  to  the  property  owners  six  cents 
damages;  and  the  wrong  has  been  so  flagrant  that  our  judges  in  the 
county  of  Kings  have  not  hesitated  in  every  instance  where  the  mat- 
ter has  been  brought  before  them,  to  set  aside  the  award  of  the  com- 
missioners, and  every  action  has  in  every  instance  where  it  has  been 
carried  to  the  General  Term  been  sustained  by  that  appellate  body.  It 
is  also  suggested  in  this  same  article,  that  "  the  result  of  sending  con- 
demnation proceedings  to  a  jury  would  be  to  overcrowd  the  court 
calendars,  which  are  already  crowded  enough,  and  to  give  the  Man- 
hattan Railway  Company  still  more  time  for  the  payment  of  dam- 
ages due  sixteen  years  ago.  Gentlemen,  if  it  is  necessary,  to  do 
justice  to  the  citizens  of  this  State,  to  crowd  our  court  calendars, 
then  let  us  crowd  them,  and  if  they  become  too  crowded,  then  let 
us  increase  the  number  of  our  judges.  Let  us,  above  all  things,  do 
justice  to  the  people.  I  also  find  this :  "  Anyone  can  see  how  entirely 
unsuitable  a  jury  is  for  the  trial  of  such  questions ;  "  that  is  merely 
a  bit  of  special  pleading.  If  the  railroad  or  any  other  corporation 
takes  away  a  part  of  your  property,  is  there  any  tribunal  more  com- 
petent to  decide  its  value  than  a  jury  of  twelve  men  from,  the  vicin- 
age? I  submit  not;  and  I  believe,  too,  if  we  fail  to  pass  this  amend- 
ment in  its  present  form,  that  the  charge  will  be  laid  at  our  door 
that  we  favor  legislation  of  a  discriminating  character  in  the  inter- 
ests of  private  corporations;  and,  for  that  reason,  I  sincerely  hope 
that  we  shall  adopt  this  amendment  and  submit  it  to  the  people. 

Mr.  Dickey  —  Mr.  Chairman,  when  this  amendment  was  consid- 
ered before  this  Convention  on  the  question  of  agreeing  with  the 
report  of  the  committee,  I  voted  to  sustain  the  report  of  the  com- 
mittee and  against  the  amendment  then  proposed.  As  I  am  about 
to  vote  otherwise  now,  in  its  new  form,  I  rise  to  state  my  reasons 
briefly.  Commissions  in  condemnations  proceedings  in  the  main 


636  REVISED  RECORD.  [Thursday, 

have  worked  well  in  our  part  of  the  country.  Our  judges  have 
appointed  good  commissioners.  Ordinarily,  we  agree  upon  them, 
and  when  we  cannot  agree,  our  judges  have  no  specal  favorites, 
and  appoint  good,  fair,  competent  men  to  discharge  the  duties  of 
commissioners;  so  that  we  have  no  grievance  with  respect  to  com- 
missioners passing  upon  the  questions  of  taking  private  property  for 
public  uses.  The  amendment  as  then  proposed  gave  either  party 
the  right  to  call  a  jury.  As  I  desire  to  retain  to  our  people  the 
right  to  have  a  commissioner  when  they  prefer,  rather  than  a  jury 
trial,  I  then  voted  against  the  proposition;  but,  as  I  understand  it 
now,  and  in  the  amendment  as  now  proposed  by  Mr.  Marks,  not  in 
the  bill  as  reported,  but  as  he  proposes  to  amend  it,  it  gives  the  land 
owner  alone  a  right  to  choose  a  jury  in  cases  when  he  wants  to,  I 
am  in  favor  of  that  proposition  for  the  reason  that  in  any  such  con- 
tingency, a  man  whose  property  is  taken  against  his  will,  an  unwill- 
ing seller,  ought  to  have  the  right  to  have  the  question  passed  upon 
by  a  jury,  if  he  elects  so  to  do.  Therefore,  in  the  amended  form,  I 
am  in  favor  of  the  amendments  as  proposed  by  Mr.  Marks. 

Mr.  Marks  —  Mr.  Chairman,  the  Committee  on  Preamble  have 
reported  this  amendment  to  the  Convention  as  I  introduced  it. 
They  have  come  to  the  conclusion  that  it  is  right  that  the  right  to  a 
trial  by  jury  should  be  had  when  the  owner  of  the  property  requires 
it.  That  is  the  report  of  the  Committee  on  Preamble,  and  I  have 
not  now  taken  the  time  of  this  committee  to  discuss  the  question  all 
over  again;  I  spent  nearly  two  hours  when  this  question  was  up 
before;  and  I  shall  not  repeat  all  of  my  reasons  then  given  for  mak- 
ing this  change  in  the  Constitution.  I  presume  the  gentlemen 
remember  them.  I  have  not  stated  all  my  reasons  to-day  for 
exempting  municipal  corporations.  They  are  fully  and  completely 
set  out  in  my  argument  made  when  the  question  was  here  before, 
and  I  do  not  want  to  burden  this  Convention  with  repeating  them. 
The  reasons  which  I  gave,  when  this  question  was  last  before  you, 
1  consider  are  sufficient  for  embodying  this  principle  in  our  Consti- 
tution. You  will  thus  secure  to  the  people  the  right  to  a  jury  trial, 
and  prevent  private  corporations  from  selecting  their  commissioners 
to  give  six  cent  awards,  when  they  should,  and  a  jury  would,  give 
substantial  damages;  you  will  thus  stop  the  practice  of  private  cor- 
porations suggesting  to  the  judge  the  name  of  one  commissioner, 
and  the  party  the  other,  and  the  judge  the  third.  Two  out  of  these 
three  commissioners  are  permitted  by  law  to  fix  the  compensation, 
and  the  influences  which  may  be  and  have  been  charged  have  been 
brought  to  bear  by  the  corporations  on  the  commissioner  appointed 
by  the  judge  to  obtain  small  awards,  are  familiar  to  us.  I  have  gone 


August  16.]  CONSTITUTIONAL  CONVENTION.  637 

all  over  the  subject  before,  and  I  do  not  think  you  want  me  to  go 
over  it  again.  I  submit  the  amendment  in  the  form  in  which  1 
believe  it  ought  to  be  passed  to  secure  the  people  their  substantial 
right  of  a  jury  trial.  I  have  taken  from  the  Code  of  Civil  Procedure 
the  exceptions  made  there. 

Mr.  Ackerly  —  Mr.  Chairman,  the  amendment  that  has  been  pro- 
posed here,  I  think,  has  been  discussed  principally  in  regard  to  its 
relations  to  city  property.  It  occurs  to  me  that  this  is  going  to  have 
quite  an  effect  upon  matters  throughout  the  country  districts 
especially.  Previous  to  about  two  years  ago,  juries  were  permitted 
in  all  cases  of  taking  lands  for  road  purposes.  In  the  revision  that 
occurred  then,  that  was  abolished,  and  it  was  established  that  the 
commission  should  be  appointed  by  the  County  Court.  The  jury 
system  was  found  to  be  cumbersome.  It  was  found  that  on  many 
occasions  it  was  advisable  to  adjourn  the  case  over,  and  the  substi- 
tution of  a  commission  in  such  contingencies  had  been  found,  at 
least  in  our  county,  to  work  well.  We  found  no  complaint  against 
it,  It  occurs  to  me  that  if  this  is  adopted  here,  perhaps  it 
would  be  taken  advantage  of  by  some  captious  owner  of  property 
for  the  sake  of  delay,  and  I  suggest  whether  there  ought  not  to  be 
.an  exception  made  here  as  to  land  taken  for  highway  purposes. 

Mr.  Marks  —  Will  the  gentleman  allow  the  Secretary  to  read  the 
amendment  as  I  have  proposed  it?  I  have  excepted  every  division 
of  the  State  that  the  Code  excepts  at  present,  and  have  only  applied 
it  to  private  corporations,  and  if  this  amendment  is  adopted  it  will 
not  affect  any  proceeding  to  take  property  for  a  highway  or  public 
place  in  any  city  or  village.  It  applies  only  to  private  corporations, 
such  as  railroads  and  any  other  private  corporation  which  is  per- 
mitted by  law  to  take  property  for  so-called  public  use. 

Mr.  Ackerly  —  It  would  require,  also,  an  entire  revision  of  the 
present  method  of  getting  a  jury. 

Mr.  Marks  —  No,  sir;  I  think  not. 

Vice-President  Alvord  here  took  the  chair  and  announced  that 
the  hour  of  five  o'clock  having  arrived,  the  Convention  stood  in 
recess  until  eight  o'clock  this  evening. 


638  REVISED  RECORD.  [Thursday, 


EVENING  SESSION. 

Thursday  Evening,  August  16,  1894. 

The  Constitutional  Convention  of  the  State  of  New  York  met  in 
the  Assembly  Chamber,  in  Albany,  N.  Y.,  August  16,  1894,  at  eight 
o'clock  P.  M. 

President  Choate  called  the  Convention  to  order. 

Mr.  Farrell  presented,  by  telegram,  a  request  to  be  excused  on 
account  of  engagements  at  home  during  the  balance  of  this  week. 

The  President  put  the  question  on  the  request  of  Mr.  Farrell  to 
be  excused  from  attendance,  and  he  was  so  excused. 

Mr.  Wiggins  —  Mr.  President,  I  would  like  to  be  excused  from 
attendance  from  the  Convention  on  Saturday  next.  Also,  Mr. 
Lester  was  called  away  to-day  unexpectedly,  and  desires  to  be 
excused  from  attendance  to-morrow. 

The  President  put  the  question  upon  the  requests  of  Mr.  Wiggins 
and  Mr.  Lester  to  be  excused  from  attendance,  and  they  were  so 
excused. 

Mr.  Peck  —  Mr.  President,  1  have  a  matter  of  business  that  was 
arranged  for  Saturday  before  the  change  in  the  rules.  I  would  like 
to  be  excused  from  attendance  on  Saturday. 

The  President  put  the  question  on  the  request  of  Mr.  Peck  to  be 
excused  from  attendance,  and  he  was  so  excused. 

Mr.  Lauterbach  —  Mr.  President,  I  desire  to  be  excused  to-mor- 
row and  Saturday. 

The  President  put  the  question  on  the  request  of  Mr.  Lauterbach, 
and  he  was  so  excused. 

Mr..  Goodelle  —  Mr.  President,  I  am  compelled  to  ask  to  be 
excused  from  .attendance  on  Saturday  of  this  week,  on  account  of 
matters  that  cannot  be  postponed. 

The  President  put  the  question  on  the  request  of  Mr.  Goodelle 
to  be  excused,  and  he  was  so  excused. 

Mr.  Pool  —  Mr.  President,  in  view  of  all  the  members  getting 
excused,  I  desire  to  ask  to  be  excused  from  attendance  from  to-mor- 
row afternoon  until  Tuesday  morning. 

The  President  put  the  question  on  the  request  of  Mr.  Poole  to 
be  excused  from  attendance,  and  he  was  so  excused. 

Mr.  A.  H.  Green  —  Mr.  President,  before  the  rule  was  made  pre- 
scribing three  sessions  a  day,  supposing  Saturday  would  be  a  dies 


August  16.]  CONSTITUTIONAL  CONVENTION.  639 

non,  I  made  an  appointment  with  a  gentleman  to  meet  him  in  Xew 
York  on  important  business  on  Saturday.  I  would  like  to  be 
excused  from  to-morrow  afternoon  until  Tuesday  next. 

The  President  put  the  question  on  the  request  of  Mr.  Green  to  be 
excused  from  attendance,  and  he  was  so  excused. 

Mr.  Durfee  took  the  chair  as  Chairman  of  the  Committee  of  the 
Whole  on  the  matter  pending  at  the  time  recess  was  taken. 

The  Chairman  —  The  Convention  is  now  in  Committee  of  the 
Whole  on  the  proposition  introduced  by  Mr.  Marks. 

Mr.  Marks  —  Mr.  Chairman,  before  the  Secretary  reads  that 
amendment,  I  ask  leave  to  withdraw  it  and  substitute  one  in  its 
place,  which  reads  as  follows: 

"  Sec.  7.  When  private  property  shall  be  taken  for  any  public  use, 
the  compensation  to  be  made  therefor,  when  such  compensation  is 
not  made  by  the  State,  shall  be  ascertained  by  a  jury  when  required 
by  the  owner  of  the  property,  and  if  not  so  required,  such  compen- 
sation shall  be  ascertained  by  not  less  than  three  commissioners 
appointed  by  a  court  of  record  as  shall  be  prescribed  by  law.  But 
the  compensation  to  be  made  for  property  taken  for  any  public  use 
by  any  civil  division  of  the  State  shall  be  ascertained  by  a  jury  or 
by  not  less  than  three  commissioners  appointed  by  a  court  of  record 
as  shall  be  prescribed  by  law.  Private  roads  may  be  opened  in  the 
manner  to  be  prescribed  by  law;  but  in  every  case  the  necessity  of 
the  road  and  the  amount  of  all  damage  to  be  sustained  by  the 
opening  shall  be  first  determined  by  a  jury  of  freeholders,  and  such 
amount,  together  with  the  expense  of  the  proceeding,  shall  be  paid 
by  the  person  to  be  benefited." 

Mr.  Kellogg  —  Mr.  Chairman,  I  received  during  the  day  yester- 
day in  the  mail  several  clippings  from  newspapers  in  relation  to  the 
proposed  amendment  of  Mr.  Marks.  In  substance  they  state  that 
the  proposed  amendment  is  not  in  the  interest  of  the  people,  but 
was  supposed  to  be  in  the  interest  of  corporations;  making  the 
suggestion  that  if  the  proposed  amendment  was  adopted  and  became 
a  part  of  the  Constitution,  in  many  cases  it  would  hinder  and  delay 
public  improvements,  both  railroad  and  municipal. 

Now,  Mr.  Chairman,  if  there  is  a  dog  in  the  fence  here,  it  seems  to 
me  that  the  Convention  should  go  slow.  If,  however,  there  is  not, 
I  am  inclined,  sir,  to  favor  the  amendment.  I  would  like  to  hear 
what  the  gentlemen  have  to  say  upon  this  subject. 

Mr.  Nichols  —  Will  the  gentleman  who  introduced  this  proposi- 
tion permit  me  to  ask  him  a  question? 


640  REVISED  RECORD.  [Thursday, 

Mr.  Marks  —  Certainly. 

Mr.  Nichols  —  I  understand  rapid  transit  is  contemplated  in  Xew 
York  city.  I  believe  it  will  be  conceded  on  all  hands  that  other 
lines  of  transit  will  be  established  in  New  York  city;  and  will  it  not 
be  necessary  for  the  new  lines  of  transit  or  transportation  to  take 
corporate  property  and  interfere  with  corporate  rights?  If  that  be 
so,  if  we  pass  this  amendment  do  we  not  put  it  in  the  power  of  cor- 
porations to  hinder,  delay  and  possibly  defeat  the  new  lines? 

Mr.  Marks  —  In  answer  to  the  gentleman's  question,  Mr.  Chair- 
man, I  would  say  that  corporations  do  not  wait  to  have  the  value 
of  property  determined  before  building  their  road.  They  go  right 
ahead  and  take  the  property.  There  is  no  provision  in  our  Con- 
stitution which  says  that  compensation  must  be  first  made  before 
property  is  taken.  It  simply  states  that  when  private  property  is 
taken  for  public  use  the  compensation  to  be  made  shall  be  in  the 
manner  prescribed.  Under  that  section  the  elevated  railroad  com- 
pany in  the  city  of  New  York  went  into  possession  illegally,  with- 
out the  consent  of  the  property  owner  and  took  the  property,  and 
then  came  into  court  and  asked  to  have  the  compensation  fixed. 
The  proposed  amendment  in  no  way  interferes  with  any  public 
improvements.  If  you  feel  inclined  to  provide  that  compensation 
shall  be  made  before  property  is  taken  you  have  an  opportunity  of 
voting  for  an  amendment  introduced  by  a  delegate  from  New  York, 
that  property  shall  not  be  taken  until  it  is  paid  for.  In  addition  th« 
underground  railroad  act  gives  the  city,  and  the  city  has  the  power 
to  lease  to  a  corporation  for  fifty  years  the  right  to  the  preperty 
taken  before  compensation  is  made.  The  company  can  go  ahead, 
build  their  road  and  then  ask  to  have  the  value  of  the  property  fixed 
afterwards,  as  the  law,  under  which  that  road  is  to  be  built,  permits. 

Mr.  Dickey  —  Mr.  Chairman,  I  would  like  to  ask  the  gentleman 
a  question.  Does  the  gentleman  claim  that  corporations,  under  the 
law  as  it  is,  have  the  right  thus  to  take  possession  of  property  with- 
out paying  for  it? 

Mr.  Marks  —  Mr.  Chairman,  there  is  no  provision  in  our  Con- 
stitution prohibiting  the  taking  of  property  until  it  is  paid  for.  The 
elevated  roads  have  done  it  and  they  do  do  it.  They  go  right 
ahead  as  you  know  in  the  cities  of  New  York  and  Brooklyn  and 
build  their  roads,  and  ten  or  fifteen  years  afterwards  they  come  into 
court  and  ask  to  have  the  compensation  fixed.  The  amendment  in 
no  way  interferes  with  any  public  improvement. 

Mr.  Dickev  —  I  would  like  to  ask  the  gentleman  whether,  while 


August  16.]  CONSTITUTIONAL  CONVENTION.  641 

it  may  be  a  matter  of  fact  that  they  do  this,  he  states  that  they  have 
any  right  so  to  do. 

Mr.  Marks  —  I  do  not  believe  that  is  a  question  under  discussion 
here.  Under  the  present  Constitution  I  believe  they  have  the 
right,  under  the  law  as  it  stands;  but  under  the  law  as  it  may 
be  amended  by  this  Convention  they  may  not  have. 

Mr.  Moore — Mr.  Chairman,  I  should  like  to  ask  Mr.  Marks  a 
question.  Is  not  the  ground  proposed  to  be  covered  by  this  amend- 
ment substantially  covered  by  the  condemnation  laws  in  relation  to 
commissioners? 

Mr.  Marks  —  It  is  not,  Mr.  Chairman.  This  amendment  pro- 
vides for  a  jury  in  all  cases  for  ascertaining  the  value  of  property  when 
taken  by  any  association  or  person  or  corporation,  except  any  civil 
division  of  the  State,  or  the  State  itself.  It  is  not  compulsory,  but, 
if  the  owner  believes  that  he  will  not  get  justice  before  the  com- 
missioners, or  believes  that  the  corporations  control  the  appoint- 
ment of  the  commissioners  so  as  to  get  decisions  in  their  favor,  or 
feels  that  he  would  like  his  peers,  his  neighbors  to  fix  the  value 
of  his  property  in  the  same  manner  as  damages  are  fixed  by  a  jury 
when  he  has  other  litigations,  he  has  the  option  of  calling  a  jury. 
You  must  remember  that  a  majority  of  two  only  of  these  three 
commissioners  is  required  by  the  law  to  fix  the  compensation.  It 
does  not  require  a  unanimous  decision,  and  the  practice  has  been 
permitted  of  allowing  each  party  to  nominate  one  commissioner 
and  the  judge  appoints  the  third  —  who  he  may  be,  the  owner 
must  take  the  risk. 

Mr.  Schumaker  —  You  don't  claim  that  is  the  law,  as  you  state 
it,  do  you? 

Mr.  Marks  —  The  law  is  that  a  majority,  two  out  of  three,  shall 
fix  the  compensation  to  be  paid.  Look  at  the  Code  and  you  will 
find  it  so. 

Mr.  Kellogg — Mr.  Chairman,  I  desire  to  get  some  information 
upon  this  matter.  I  will  put  it  in  the  form  of  a  question.  There 
are  several  of  my  fellow-delegates  on  this  side  of  the  chamber  who 
would  like  to  hear  it  answered. 

Mr.  Schumaker  —  Mr.  Chairman,  the  law  is  not  as  the  gentle- 
man states  it.  Commissioners  are  appointed  generally  by  the 
Supreme  Court,  at  General  Term,  unless  there  is  a  special  law 
passed  by  the  Legislature  giving  one  judge  the  power.  But  there 
is  no  such  thing  in  the  law  as  a  railroad  company  or  corporation 

41 


642  REVISED  RECORD.  [Thursday, 

appointing  one  man  and  the  judge  the  other,  and  the  person  whose 
property  is  taken  the  other. 

Mr.  H.  A.  Clark  —  Mr.  Chairman,  it  would  seem,  from  the  argu- 
ments here,  that  this  act  related  only  to  rapid  transit  within  the 
city  of  New  York.  It  is  apparently  drawn  so  that  it  will  cover 
all  highways  in  New  York  State.  I  understand  from  Mr.  Marks 
that  he  has  made  an  amendment  to  this  act,  but  the  amendment  has 
not  been  read  since  I  have  been  in  the  Convention  to-night,  so 
that  I  do  not  know  what  it  is.  May  we  have  it  read? 

The  Chairman  —  The  Secretary  will  read  the  amendment  for  the 
information  of  the  committee. 

The  Secretary  read  the  amendment  as  follows : 

"  When  private  property  shall  be  taken  for  any  public  use,  the 
compensation  to  be  made  therefor,  when  such  compensation  is 
not  made  by  the  State,  shall  be  ascertained  by  a  jury,  when  required 
by  the  owner  of  the  property,  and,  if  not  so  required,  such  compen- 
sation shall  be  ascertained  by  not  less  than  three  commissioners 
appointed  by  a  court  of  record,  as  shall  be  prescribed  by  law;  but 
the  compensation  to  be  made  for  property  taken  for  any  public  use 
by  any  civil  division  of  the  State  shall  be  ascertained  by  a  jury  or  by 
not  less  than  three  commissioners  appointed  by  a  court  of  record, 
as  shall  be  prescribed  by  law.  Private  roads  may  be  opened  in 
the  manner  to  be  prescribed  by  law,  but  in  every  case  the  necessity 
of  the  road  and  the  amount  of  the  damage  to  be  sustained  by  the 
opening  shall  be  first  determined  by  a  jury  of  freeholders,  and  such 
amount,  together  with  the  expense  of  the  proceeding,  shall  be  paid 
by  the  person  to  be  benefited." 

Mr.  Marks  —  Mr.  Chairman,  I  do  not  wish  to  change  the  entire 
system  of  fixing  the  compensation  to  be  paid  for  taking  private  prop- 
erty as  it  now  exists,  when  taken  by  the  State,  or  as  the  system  exists 
and  varies  in  various  cities,  counties,  towns  and  villages  through- 
out the  State.  My  amendment  is  intended  to  apply  only  to  the 
manner  of  fixing  the  compensation  to  be  paid  for  property  taken 
for  public  use  by  any  person,  association  or  corporation,  except  the 
State,  and  any  and  all  branches  of  the  State  government.  My  rea- 
sons for  excepting  those  branches  of  the  State  government  are  fully 
set  out  at  page  429  of  the  Convention  Debates.  I  argued  the 
question  then  fully  and  at  length.  The  power  of  eminent  domain 
by  the  State  or  any  division  thereof  has  been  called  an  indissoluble 
incident  of  sovereignty,  and  is  exercised  to  accomplish  and  secure 
lawful  objects,  and  I  claim  — 


August  16.]  CONSTITUTIONAL  CONVENTION.  643 

Mr.  C.  B.  McLaughlin  —  Will  the  gentleman  permit  me  to  ask 
him  a  question? 

The  Chairman  —  Does  the  gentleman  give  way  for  Mr.  McLaugh- 
lin? 

Mr.  Marks  —  Certainly,  Mr.  Chairman. 

Mr.  McLaughlin  —  Supposing  that  in  the  city  of  New  York 
it  becomes  necessary  to  have  another  elevated  railroad.  The 
present  elevated  railroad  in  the  city  of  New  York  buys  the  property 
over  which  the  proposed  new  road  would  necessarily  pass.  Would 
it  not  be  in  the  power  of  the  present  elevated  railroad  to  prevent 
the  building  of  the  new  road,  or,  at  least,  to  delay  its  building  for 
several  years? 

Mr.  Marks  —  Mr.  Chairman,  there  is  no  possibility  of  any  such 
condition  of  things.  The  railroad  company  goes  right  on  and  builds 
its  road,  and  after  its  road  is  built  it  comes  into  court  and  takes 
condemnation  proceedings.  Besides,  how  can  it  delay  matters, 
when  a  special  jury  called  would  give  speedier  awards  and  justice 
than  any  commission  ever  appointed. 

Mr.  McLaughlin  —  Will  the  gentleman  permit  another  question? 

Mr.  Marks  —  Yes,  sir. 

Mr.  McLaughlin  —  Can  a  railroad  company  take  private  prop- 
erty without  first  having  it  condemned  by  proceedings  in  court? 
May  not  an  injunction  be  obtained  to  restrain  the  taking  of  the 
property? 

Mr.  Marks  —  They  have  done  it  as  a  matter  of  fact.  They  have 
taken  property,  and  then  they  applied  to  the  court  to  have  it  con- 
demned. The  elevated  railroad  company  did  not  condemn  a  single 
piece  in  advance.  There  is  no  prohibition  in  the  Constitution  to 
prevent  it.  There  is  nothing  in  that  question  that  is  going  to  inter- 
fere with  rapid  transit  in  the  city  of  New  York.  Examine  the 
underground  railroad  act  about  which  so  much  has  been  said. 
I  claim  that  when  any  branch  of  the  State  takes  private  property 
for  purely  public  purposes,  one  party  has  no  advantage  over  the 
other,  and  the  commission  may  be  satisfactory  to  the  owner  of 
the  property,  as  well  as  to  the  public.  But  where  it  is  taken  by  a 
private  corporation  for  strictly  private  purposes,  the  same  privilege 
should  not  be  given  to  private  corporations  as  to  the  public  at 
large. 

Mr.  Deady  —  Mr.  Chairman,  is  not  Mr.  Marks  confounding  the 
power  of  private  corporations  with  something  else?  Have  private 
corporations  any  right  to  condemn  and  go  upon  land  without 
paying  for  it? 


644  REVISED  RECORD.  [Thursday, 

Mr.  Marks  —  My  friend  knows  that  the  elevated  railroad  com- 
panies have  done  it. 

Mr.  Deady  —  I  know  nothing  of  the  kind,  Mr.  Chairman. 
Mr.  Marks  —  They  have  done  it. 

Mr.  Choate  —  Mr.  Chairman,  will  Mr.  Marks  allow  me  to  ask 
him  a  question? 

Mr.  Marks  —  Yes,  sir. 

Mr.  Choate  —  I  observe  that  this  amendment  was  introduced  by 
Mr.  Marks,  by  request.  Is  there  any  objection  to  stating  by  whose 
request? 

Mr.  Marks  —  That  is  entirely  an  error,  Mr.  President.  That  is 
the  second  time  that  has  occurred,  in  reference  to  this  same  amend- 
ment. Somebody  at  the  desk  when  the  thing  was  up  before  put  in 
the  words  "  by  request."  Who  did  it  I  do  not  know.  I  had  it  cor- 
rected on  the  minutes,  as  the  record  will  show.  I  asked  to  have 
the  debates  changed  by  striking  out  the  words  "  by  request."  I  am 
responsible  for  the  amendment  alone.  Nobody  has  requested  it, 
but  I  came  to  the  conclusion,  after  seeing  the  working  of  the  present 
system  in  some  cases  which  came  under  my  observation  and  the 
injustice  committed  by  the  commissioners  in  those  cases,  and  the 
wrong  which  is  being  constantly  perpetrated  on  the  owners  of  prop- 
erty in  Brooklyn  by  these  commissioners  and  the  charges  made 
against  them  that  the  system  needed  correction.  I  went  to  the 
printer's  office  to  find  out  how  the  words  "  by  request r  got  in  there. 
The  Clerk  at  the  desk  tells  me  that  probably  he  put  it  in  when  he 
was  writing  the  heading. 

Mr.  A.  H.  Green  —  Mr.  Chairman,  as  this  matter  has  been 
before  the  Committee  on  Preamble  and  fully  discussed  there,  and 
the  substance  of  this  amendment  reported  to  the  House,  I  think, 
perhaps,  it  is  as  well  to  make  a  few  remarks  on  the  subject.  If  you 
desire  to  take  my  property  as  an  individual  you  have  got  to  pay 
my  price  for  it  or  you  can't  get  it;  you  go  without  it.  That  is  the 
first  proposition.  The  exigencies  of  the  public  require  that  private 
property  be  taken  sometimes  for  public  use.  The  next  thing  is  to 
provide  an  arbiter  who  shall  determine  the  compensation.  Under 
the  right  of  eminent  domain  it  matters  not  how  I  may  value  my 
property;  it  may  be  my  ancestral  home;  it  may  have  been  the 
home  of  my  forefathers ;  it  may  be  that  every  apartment  in  the  man- 
sion is  consecrated  by  some  domestic  incident  that  is  of  value,  or 
it  may  be  that  every  tree  upon  the  place  is  a  matter  of  importance 
to  me.  That  matters  not.  If  the  public  wants  my  property,  they 
are  going  to  take  it,  and  it  is  put  down  in  all  the  elementary  treatises 


August  16.]  CONSTITUTIONAL  CONVENTION.         %  645 

as  taken  by  force.  They  have  come  to  take  my  property  away  from 
me  against  my  will.  Now,  in  the  matter  of  taking  my  property 
for  an  individual  purpose;  if  you  want  my  property  for  an  individual 
purpose,  you  have  got  to  pay  my  price  for  it  or  you  cannot  get  it. 
The  public  can  get  it,  but  there  must  be  an  arbiter  constituted,  and 
he  should  be  constituted  with  all  the  fairness  that  rules  and  regula- 
tions can  possibly  provide ;  and,  if  anything  is  to  be  done,  it  is  to  be 
done  in  favor  of  the  person  whose  property  is  taken  from  him  against 
his  will.  Now,  how  does  it  work?  The  Constitution  says  that  pri- 
vate property  may  be  taken  for  public  use,  to  be  compensated  for  by 
commissioners  appointed  by  the  Supreme  Court,  or  by  a  trial  by 
jury,  as  may  be  determined  by  law.  If  I  am  correct  in  this,  the  law 
has  provided  that  it  shall  be  done  by  commissioners,  and  you  are 
relegated  to  the  Supreme  Court  to  have  commissioners  appointed 
to  take  your  property.  This  matter  was  up,  irrespective  entirely 
of  Mr.  Marks's  amendment,  which  is  about  the  same  thing.  It  was 
simply  provided  there  that  the  owner  of  the  property  should  have 
the  option  of  saying  whether  he  would  have  a  commissioner 
appointed  by  the  Supreme  Court,  or  he  would  have  a  jury.  Why 
was  that  necessary?  It  was  necessary  for  this  reason  that  some- 
times judges  are  prejudiced,  and  they  may  appoint  commissioners 
that  would  not  do  exact  justice  to  the  owner,  and  in  that  case  he 
has  the  option  of  asking  for  a  jury.  It  simply  gave  him  that  option, 
that  he  might  have  his  rights  preserved  to  him  one  way  or  the 
other.  Now,  this  matter  of  eminent  domain,  up  to  within  about 
the  last  ten  years,  was  very  sparingly  used.  Within  fifteen  or 
twenty  years  it  has  become  deputed  —  not  acted  upon  by  the  State, 
but  deputed  to  private  corporations  to  exercise  this  right  of  eminent 
domain  in  taking  a  person's  property  from  him  without  his  con- 
sent; and  the  tendency  has  been  all  the  time  to  make  it  easier  to 
get  a  person's  private  property,  to  acquire  the  individual's  rights 
against  his  consent.  Now,  the  first  law  that  I  have  any  knowledge 
of  was  in  reference  to  the  new  aqueduct,  in  which  it  was  provided 
that  before  you  paid  for  the  property,  after  the  valuation  was  made, 
you  could  enter  upon  the  property  right  off,  within  so  many  days, 
and  take  it  without  paying  for  it.  Then  came  the  law  of  1892. 
I  am  not  much  in  the  practice  of  the  law,  but  I  have  seen  a  good  deal 
of  these  matters  where  I  have  had  to  be  represented  in  property 
which  was  to  be  taken,  and  I  am  somewhat  familiar  with  the  pro- 
cedure. In  1892,  in  a  matter  called  the  Elm  street  widening,  there 
was  a  provision  that  the  public  could  enter  upon  property  and  take 
it  before  any  compensation  was  made  and  leave  the  owner  to  get 
his  compensation  the  best  he  could.  The  latest  law  is  the  late 


646  REVISED  RECORD.  [Thursday, 

rapid  transit  act,  under  which,  upon  the  commissioners  taking  the 
the  oath  of  office,  the  bare  fact  of  the  commissioners  taking  the 
oath  of  office  entitled  the  public  to  enter  upon  the  property  and 
condemn  it,  and  leave  the  owner  to  get  his  compensation  when 
he  can.  That,  I  say,  is  wrong.  The  individual  should  be  protected. 
The  powers  of  the  public  in  official  life,  the  corporation  counsel 
and  the  court,  and  the  whole  army  and  retinue  of  retainers  are  now 
marshaled  against  the  interest  of  the  owner.  He  has  got  to  fight 
them  all  if  he  wants  to  get  his  rights.  He  should  be  protected,  and 
that  is  the  reason  I  say  that  he  should  have  the  choice  of  tribunals 
that  determine  the  value  of  his  property;  and,  secondly,  I  say  that 
no  man's  property  should  be  taken  from  him,  and  it  is  an  unheard-of 
thing,  and  I  do  not  believe  it  would  be  sustained  under  the  Consti- 
tution of  the  United  States  that  your  property  should  be  taken  away 
from  you  until  the  money  is  put  in  your  hands  and  you  are  paid 
for  your  property.  It  is  unreasonable  that  your  home  and  your 
place  of  business  may  be  entered,  immediately  the  commissioners 
are  appointed  and  take  the  oath  of  office,  that  they  can  take  your 
property  and  turn  you  out  and  leave  you  to  get  your  money  as  you 
can.  There  should  be  a  provision  added  to  this  amendment  to 
the  effect  that  no  man's  property  shall  be  taken  from  him,  unless  he 
is  paid  for  it,  and  the  individual's  right  should  be  protected  in  that 
way  as  it  is  not  now.  Take  this  very  matter  of  the  elevated  road. 
I  am  not  arguing  the  elevated  railroad  companies'  case  or  anybody 
else's  case.  I  don't  care  anything  about  the  elevated  railroad. 
They  have  entered  upon  property  there,  and  I  suppose  there  are 
some  two  or  three  thousand  suits  pending  now  where  men  want 
to  get  paid  for  their  property,  and  they  have  been  ten  years 
pending. 

Now,  this  will  not  be  complete  until  two  things  are  done;  that 
is  to  say,  that  the  person  whose  property  is  to  be  taken  should  have 
the  right  of  choice  between  a  jury  and  commissioners,  and,  secondly, 
that  his  property  should  not  be  taken  from  him  until  provision  is 
actually  made  for  the  payment  therefor.  It  is  not  enough  to  say 
that -the  municipal  corporation  is  entirely  solvent  and  capable  of 
paying  at  any  time.  I  know  of  a  municipal  corporation  that  is 
bankrupt  and  could  not  pay  its  running  expenses,  and  who  knows 
when  such  a  thing  may  happen  again?  No  man's  property  should 
be  taken  from  him  until  he  is  paid  for  it.  That  is  an  individual  right. 
It  is  only  within  the  last  few  years  that  anything  else  has  been 
thought  proper,  and  it  is  a  stretch  of  the  law,  in  my  judgment,  that 
it  is  utterly  unjustifiable  and  improper.  I  suppose  if  the  court 


August  16.]  CONSTITUTIONAL  CONVENTION.  647 

should  say  that  three  and  two  made  seven,  that  makes  the  law, 
but  that  would  not  satisfy  fair-minded  men. 

Xow,  sir,  would  our  friend,  Mr.  Marks,  who  has  so  ably  argued 
this  matter,  propose  to  exempt  municipal  corporations  from  the 
effect  of  this  thing?  I  do  not  believe  in  that  at  all.  I  believe  that 
municipal  corporations  should  be  compelled  to  pay  the  owners  of 
property  before  they  enter  upon  it  and  take  it  and  use  it,  just  as 
much  as  anybody  else.  The  individual  right  is  the  thing  to  be  pro- 
tected. I  think  the  laws  of  eminent  domain  are  being  constantly 
extended,  and  this  ought  to  be  checked.  I  hope,  Mr.  Chairman,  that 
these  two  provisions  will  be  incorporated  in  the  Constitution  in  the 
interest  of  the  individual  owner  and  against  the  array  of  litigation, 
trouble  and  delay  that  always  occur.  I  have  had  cases  which  ran 
along  for  three  or  four  years  before  the  commissioners  would  come 
to  a  conclusion.  Incompetents  are  appointed.  I  know  of  cases, 
to  speak  for  myself,  not  individual  property,  but  property  that  I 
happened  to  represent,  which  ran  along  for  two  or  three  years 
before  the  commissioners  found  a  valuation,  and  these  delays  should 
not  be  allowed  to  obtain  against  the  individual  owner.  If  any  side 
is  to  be  favored  at  all,  it  should  be  the  individual  owner. 

Mr.  Alvord  —  Mr.  Chairman,  I  would  like  to  ask  a  question  or 
two.  It  does  seem  to  me,  sir,  that  the  larger  part  of  the  argument 
in  this  case  is  based  upon  the  alleged  corruption  of  the  Legislature, 
and  an  entire  want  of  confidence  in  the  judiciary  of  this  State. 
(Applause.) 

It  is  proposed  here  to  tie  up,  completely  and  entirely  and  forever, 
corporations  in  this  State.  I  hold  that  through  the  Legislature 
of  the  State  and  the  competent  authority  of  the  judiciary,  we  have 
sufficient  force  and  power  to  compel  the  execution  of  these  duties 
and  rights  directly.  I  ask  my  fellow-members  of  this  Convention 
to  tell  me  whether  this  is  not  intended  to  be  an  absolutely  socialistic 
proposition?  We  people  of  the  interior  want  no  such  law.  If  the 
people  of  the  city  of  New  York,  through  its  entire  municipality, 
judges  and  all,  are  of  the  kind  and  sort  that  these  men  pretend 
they  are,  then,  for  God's  sake,  cut  it  away  from  its  moorings  and 
carry  it  out  into  the  Atlantic  ocean  to  be  swept  away  by  the  winds 
and  waves  and  destroyed,  as  it  ought  to  be,  utterly  and  completely. 
I  hold,  sir,  that  this  matter  should  be  remanded  to  the  Legislature. 
It  is  no  business  of  the  Constitutional  Convention.  I  dread  the 
march  and  power  of  socialism.  I  dread  it,  sir;  and,  so  far  as  my 
voice  and  vote  are  concerned  in  conjunction  with  anything  and 
everything  that  shall  come  before  this  Convention,  while  I  shall 
endeavor  to  guard  the  interests  of  the  people  in  right  and  legitimate 


648  REVISED  RECORD.  [Thursday, 

ways,   I  never  will  give  my  vote  nor  my  voice  in  favor  of  the 
progress  of  socialism. 

Mr.  Forbes  —  Mr.  Chairman,  I  desire  to  explain  the  vote  which 
I  shall  give  in  favor  of  this  amendment. 

First,  this  is  an  amendment  which  comes  directly  within  the  line 
of  our  duties  as  a  Convention  to  correct  and  to  amend  the  Consti- 
tution as  it  now  exists.  In  1846,  when  this  Constitution  was 
adopted  and  this  present  section  framed,  corporations  were  few  in 
comparison  to  what  they  are  to-day.  They  were  then  formed  largely 
under  special  laws.  They  are  now  formed  under  general  laws,  and 
any  body  of  individuals  can  get  together  and  form  themselves  into 
a  corporation,  and  can  then,  if  they  comply  with  the  other  laws, 
take  private  property.  It  seems  to  me  that  now  is  the  proper  time 
to  consider  whether  this  section  should  be  amended,  because  of  the 
change  in  the  condition  of  the  State,  in  regard  to  corporations. 

The  next  point  is  this:  That  what  may  have  been  the  case  fifty 
years  ago,  when  the  State  was  comparatively  small,  the  people  few 
and  corporations  fewer,  is  not  the  case  now.  We  have  outgrown 
that  condition.  Corporations  exist  now  in  every  part  of  the  State, 
and  it  seems  to  me  that  the  property  owner  should  be  protected 
further  than  he  now  is  by  mere  commissions.  That  is  all  that  this 
section  does ;  it  simply  protects  the  owner  of  the  property. 

It  is  stated  here  that  other  corporations  could  not  be  able  to  make 
improvements  in  case  this  constitutional  amendment  should  be 
adopted.  We  all  seem  to  have  forgotten  the  fact  that  corporations 
have  charters  which  can  be  amended;  which  are  subject  to  constant 
amendment  by  the  Legislature.  They  cannot  put  themselves  in  the 
way  of  any  general  improvement;  it  is  simply  impossible. 

Another  things  seems  to  have  been  forgotten,  and  that  is  that, 
under  the  law,  as  it  stands,  an  entry,  if  it  has  been  made  upon 
property  and  a  corporation  is  in  possession,  can  be  held  against  the 
world;  and,  if  the  corporation  that  desires  to  condemn  the  property 
is  not  in  possession,  it  can  take  possession  of  the  property  under 
sections  3379  and  3380  of  the  present  Code. 

Should  we,  as  a  Convention,  consider  any  particular  corporation? 
Is  it  not  a  fact  that  the  corporations  of  this  State,  which  are  so 
numerous,  should  be  considered  as  a  whole?  The  question  is  of 
individual  rights.  If  I  have  a  piece  of  property,  should  it  be  taken 
away  from  me  with  less  formality  than  is  demanded  in  the  trial  of  a 
matter  of  difference  between  myself  and  my  neighbor  as  to  a  bound- 
ary fence  or  some  other  matter  of  that  kind? 

Now,  it  seems  to  me  that  we  are  in  a  position  to  take  up  this 
matter,  because  it  is  already  fifty  years  old,  because  the  State  has 


August  i6.|  CONSTITUTIONAL  CONVENTION.  649 

changed  enormously  during  that  fifty  years,  because  the  right  of  the 
individual  remains  the  same  to-day  that  it  always  has  been,  the  thing 
to  be  protected. 

Mr.  A.  B.  Steele  —  Mr.  Chairman,  will  the  gentleman  permit  me 
to  ask  him  a  question?  I  understand  that  one  of  the  objections  he 
makes  is  that  the  railroad  may  now  have  the  right  and  does  take 
possession  of  property  before  the  damages  are  assessed.  Will  he 
tell  me  what  part  of  this  amendment  will  effect  a  change  in  that, 
and  will  prevent  the  railroad  company  from  taking  possession  of 
property  before  paying  for  it? 

Mr.  Forbes  —  My  reference  to  the  law  was  in  respect  to  the 
objection  that  is  made  that  one  railroad  corporation  of  any  kind 
could  prevent  another  corporation  from  carrying  out  the  purposes 
for  which  it  was  incorporated.  It  answers  that  question.  The 
question  is  itself  an  answer  to  the  objection  which  is  made  to  the 
proposed  amendment.  , 

Mr.  Steele  —  May  I  ask  a  further  question.  Under  the  present 
Constitution  has  not  the  Legislature  the  right  to  give  jury  trials 
in  cases  of  this  kind?  In  other  words,  does  not  the  Constitution, 
as  it  now  reads,  permit  the  Legislature  to  say  whether  the  assess- 
ment of  damages  shall  be  by  a  jury  or  by  a  commission  of  three 
persons  in  any  case  whatever?  And,  if  so,  why  is  not  this  strictly  a 
matter  of  legislation?  And,  further,  has  the  Legislature  ever 
refused  to  provide  for  a  jury  assessment? 

Mr.  Forbes  —  In  answer  to  that  question,  Mr.  Chairman,  I  will 
say  that  if  we  were  certain  that  the  Legislature  would  do  right 
in  all  things,  we  might  as  well  adjourn  and  go  home  at  once.  We 
are  here  to  control  and  to  regulate  the  Legislature. 

Mr.  A.  H.  Green  —  Mr.  Chairman,  I  have  been  asked  to  suggest 
what  would  be  the  advantage  to  a  man  in  having  a  jury  that  he 
could  not  himself  provide?  If  he  has  a  jury  in  this  case,  he  can 
go  to  the  ordinary  panel  of  the  jury  and  commence  his  action;  the 
jury  is  drawn  from  the  ordinary  panel,  he  challenges  or  criticises 
the  jury  and  has  a  chance  to  get  a  fair  jury ;  and  without  any  reflection 
as  to  the  matter  which  disturbs  our  friend  from  Onondaga  so  much, 
he  may  not  get  what  he  deems  a  fair  commission  appointed  by  the 
court.  He  has  a  right  to  that.  I  have  understood  that  always. 
Sometimes  he  thinks  that  he  would  rather  not  go  to  such  and  such 
a  judge,  and  brings  his  action  before  another  judge.  But,  if  a  man 
goes  to  the  ordinary  panel,  when  the  jury  is  drawn,  he  has  a  right 
to  criticise  the  fairness  of  the  jury.  If  he  thinks  his  property  may 


650  REVISED  RECORD.  [Thursday, 

be  taken  away  from  him  against  his  consent  and  by  an  unfair 
tribunal,  he  has  the  option  of  choosing  another  tribunal. 

Mr.  Hill  —  Air.  Chairman,  I  would  like  to  inquire  of  the  gentle- 
man who  has  last  spoken  whether  or  not  this  amendment  was  unani- 
mously reported  by  the  committee? 

Mr.  Green  —  I  don't  know  as  in  that  exact  language,  but  in 
principle. 

Mr.  Schumaker  —  It  was  not  a  unanimous  report.  You  know 
how  you  voted. 

Mr.  Green  —  I  beg  your  pardon. 

Mr.  Schumaker  —  You  voted  against  this  measure.  You  said 
it  was  not  broad  enough. 

Mr.  E.  A.  Brown  —  Mr.  President,  I  desire  to  sustain,  unquali- 
fiedly, the  position  taken  by  my  colleague  in  the  Twentieth  District 
to  the  effect  that  this  proposed  amendment  of  the  organic  law  of 
the  State  is  legislation,  pure  and  simple.  Now,  Mr.  Chairman,  it 
has  been  asserted,  with  the  appearance  of  candor  and  good  faith, 
which  I  do  not  desire  to  question  here,  except  as  to  the  correctness 
of  the  position  taken,  that  the  owners  of  property  taken  by  the 
right  of  eminent  domain  for  railway  or  other  corporate  purposes 
have  no  choice,  and  no  right,  and  no  suggestion  as  to  the  course  by 
which  a  railway  or  other  corporation  shall  cross  their  land.  The 
statutes  of  this  State  now  provide  that  in  the  first  instance  the  cor- 
poration shall  file  maps  in  the  county  clerk's  office  of  every  county 
through  which  their  line  will  pass  showing  the  course,  the  dis- 
tance, the  route  and  the  amount  of  land  proposed  to  be  taken.  If 
any  property  owner  affected  by  the  proposed  laying  out  of  such  a 
railway  desires  to  correct  that,  the  condemnation  law  provides  that 
he  shall  be  heard,  and  that  the  court  shall  decide  whether  he  is 
right  or  whether  the  route  proposed  to  be  taken  by  that  corporation 
shall  be  the  final  route  that  the  corporation  shall  take. 

Another  thing,  Mr.  Chairman,  there  is  a  statute  of  this  State 
which  provides  that  in  case  a  private  corporation  is  formed  under 
the  laws  of  this  State  for  the  purpose  of  supplying  water  to  villages, 
hamlets,  towns,  etc.,  of  this  State,  it  shall  have  the  right  of  eminent 
domain.  It  shall  have  the  right  to  take  such  land  as  may  be  neces- 
sary for  its  purposes.  It  shall  have  the  right  to  condemn  those 
lands  and  to  enter  into  contracts  for  the  purpose  of  supplying  vil- 
lages along  its  line  with  water.  Now,  if  this  amendment  is  to 
pass,  this  Convention  says  that  all  those  rights  will  be  submitted 
to  the  cumbersome  and  the  almost  obsolete  practice  of  going  before 
a  jury.  If  that  is  so,  sir,  any  corporation  desiring  to  condemn  land 


August  16.]  CONSTITUTIONAL  CONVENTION.  651 

for  a  mile  or  over  in  the  rural  districts  of  the  State  where  there  are 
only  two  Circuit  Courts  held  each  year,  will  require  years  before  it 
will  have  the  right  to  enter  upon  and  take  possession  so  that  it 
may  furnish  to  those  villages  and  hamlets  pure,  wholesome  water 
under  the  laws  of  the  State.  In  the  rural  districts  of  this  State  — 
and  I  have  some  experience  in  the  matter  —  we  are  entirely  satisfied 
with  the  honesty  of  the  courts.  We  are  entirely  satisfied  when 
we  agree  with  the  representatives  of  railway  corporations  as  to  the 
nomination  of  appraisers  or  commissioners  who  are  to  pass  upon 
the  value  of  our  lands.  I  say,  sir,  and  I  say  it  without  fear  of  con- 
tradiction, that  in  no  case  has  a  single  instance  occurred  where  a 
property  owner  did  not  get  more  than  the  value  of  his  property 
which  was  taken  for  corporate  purposes.  Where  a  piece  of  property 
was  taken  in  the  village  of  Ilion  in  this  State  by  the  West  Shore 
Railroad,  the  entire  cost  value  was  only  $800.  I  had  personal 
charge  of  the  case  for  the  property  owner,  and  we  recovered, 
through  the  commissioners,  $1,800  from  that  railroad  corporation. 
In  another  case  in  the  city  of  Utica,  which  came  under  my  observa- 
tion, $65,000  were  allowed  upon  property  which  cost  less  than 
$40,000. 

I  say,  sir,  that  this  proposed  amendment  would  incorporate  into 
the  organic  law  of  the  State  an  expensive,  dilatory  and  unsatisfactory 
provision.  I  say,  sir,  that  the  condemnation  laws  of  this  Stare 
are  fair,  equitable  and  right;  and,  in  saying  that  I  cast  no  reflection 
upon  the  gentlemen  who  reside  in  the  city  of  New  York  or  city  of 
Brooklyn,  or  any  of  the  cities  of  this  State. 

Mr.  Marshall  —  Mr.  Chairman,  I  consider  this  proposition  both 
unnecessary  and  dangerous.  It  is  not  necessary,  because  I  believe 
that  the  present  Constitution  gives  ample  protection.  Section  7 
of  article  I  provides :  "  When  private  property  shall  be  taken  for 
any  public  use,  the  compensation  to  be  made  therefor,  when  such 
compensation  is  not  made  by  the  State,  shall  be  ascertained  by  a 
jury  or  by  not  less  than  three  commissioners  appointed  by  a  court 
of  record,  as  shall  be  prescribed  by  law.'' 

The  Legislature  has  adequate  power  to  make  such  provisions 
as  to  give  to  the  property  owner  the  election  contemplated  by  the 
proposed  amendment,  if  it  is  desired  to  give  him  such  election;  if 
it  is  fair  or  just  or  proper  that  the  property  owner  alone  should 
have  such  election.  I  think  that  the  mere  statement  of  this  fact 
should  be  sufficient  to  defeat  any  contemplated  change  in  the  Con- 
stitution. I  have,  however,  said  that  this  is  a  dangerous  proposition, 
and  I  will  proceed  briefly  to  give  my  reasons  for  that  statement, 
without,  in  any  way,  intending  to  reflect  upon  Mr.  Marks,  or  his 


65-'  REVISED  RECORD.  [Thursday, 

motives,  for  I  have  the  highest  regard  for  his  integrity  and  ability. 
I  fear,  however,  that  he  has  been  misled  by  his  zeal  and  enthusiasm 
to  advocate  a  bad  measure,  which  he  honestly  believes  to  be  in  the 
interest  of  the  people. 

How  does  this  proposition  come  here?  What  is  the  history  of 
this  proposition  before  this  Convention?  Who  has  demanded  that 
the  organic  law  shall  be  changed  in  this  particular?  Has  any  objec- 
tion been  presented  by  property  owners  in  any  part  of  the  State 
asking  that  the  Constitution  shall  be  amended?  I  have  heard  of 
no  such  application. 

The  first  proposition  which  relates  to  this  subject  presented  here 
was  that  known  as  introductory  No.  15,  which  provides:  ''When 
private  property  shall  be  taken  for  any  public  use  by  any  individual, 
association  or  corporation,  except  a  municipal  corporation,  the  com- 
pensation to  be  made  therefor,  when  such  compensation  is  not  made 
by  the  S.tate,  shall  be  ascertained  by  a  jury."  That  was  referred 
first  to  the  Judiciary  Committee,  and  when  it  was  there  presented 
the  question  was  asked  of  the  introducer  whether  such  a  provision 
was  not  exactly  what  the  elevated  railroad  companies  in  this  State 
had  for  some  years  been  clamoring  for  from  the  Legislature. 

I  remembered  that  the  McKnight  bill  had  been  before  the  Legis- 
lature, and  that  in  the  numerous  elevated  railroad  cases  it  had 
been  the  struggle  of  the  elevated  railroad  companies  to  get  the  cases 
which  were  brought  against  them  before  juries,  so  that  the  trials 
should  proceed  before  common-law  tribunals,  or  before  a  mixed 
tribunal,  enabling  one  part  of  the  case  to  be  tried  before  a  court 
of  equity  and  the  remainder  of  the  issues  to  be  tried  before  a  com- 
mon-law jury.  Why  was  this?  The  elevated  railway  companies 
found  that  in  such  cases  as  were  brought  before  juries  .they  were 
apt  to  accomplish  more  satisfactory  results  than  they  could  obtain 
from  courts  of  equity.  The  reason  for  this  was  that  the  citizens 
who  were  drawn  on  juries,  who  did  not  live  along  the  line  of  the 
elevated  railroads,  expressed  themselves  as  entirely  content  with 
the  elevated  railroad  system,  believing  it  to  be  a  great  public  benefit, 
and,  therefore,  they  were  disposed  to  give  rather  small  verdicts,  while 
commissioners  of  courts,  before  whom  similar  questions  were  tried, 
recognizing  the  fact  that  damage  had  been  done  to  property, 
awarded  compensation  which  was  much  more  substantial. 

After  the  elevated  railroads  had  made  this  discovery,  they  began 
to  present  to  the  courts  all  sorts  of  propositions,  to  the  end  that  the 
questions  of  damage  arising  in  these  elevated  railroad  cases  should 
be  triable  before  juries  instead  of  before  courts  of  equity. 

So,  in  the  case  of  Lynch  v.   Metropolitan   Railroad   Company 


August  16.]  CONSTITUTIONAL  CONVENTION.  653 

(129  N.  Y.,  274),  the  question  was  first  presented  as  to  whether 
or  not  under  the  Constitution,  where  a  money  judgment  was  asked 
in  the  complaint,  in  an  action  brought  by  a  property  owner  against 
the  railroad  company  to  restrain  it  from  operating  its  railroad,  or 
having  the  damages  assessed  in  the  action,  the  company  should  have 
the  right  of  trial  by  jury,  under  the  existing  Constitution,  of  the 
question  as  to  whether  or  not  there  should  be  damages  assessed  and 
how  much  the  damages  should  be.  The  Court  of  Appeals  held 
that  the  case,  being  an  equity  action,  the  high  court  had  the  power 
to  dispose  of  the  question  of  damages,  and  that  the  railroad  com- 
pany did  not  have  the  constitutional  right  of  trial  before  a  jury.  After 
that  decision  had  been  announced  by  the  Court  of  Appeals  the  rail- 
road company  came  before  the  Legislature  to  procure  legislation 
which  would,  in  those  cases,  enable  it  to  go  before  a  jury  in  any 
case,  and  the  result  was  that  the  so-called  McKnight  bill  was  passed 
by  the  Legislature.  It  is  known  as  chapter  208  of  the  Laws  of  1891, 
and  amended  section  970  of  the  Code  of  Civil  Procedure,  so  that  it 
declared  ''  where  a  party  is  entitled  by  the  Constitution  or  express 
provision  of  law  to  trial  by  jury  of  one  or  more  issues  of  facts,  or 
where  one  or  more  questions  arise  on  the  pleadings  as  to  the  value 
of  property  or  as  to  the  damages  which  a  party  may  be  entitled  to 
recover,  either  of  the  parties  may  apply,  on  notice,  at  any  time  to 
the  court  for  an  order  directing  all  such  issues  or  questions  to  be 
definitely  and  plainly  stated  for  trial,  and  requiring  the  court  on 
such  application  to  cause  such  issues  or  questions  to  be  so  stated." 
Thereupon  the  elevated  railroad  company  sought  to  have  issues  set- 
tled in  all  their  cases  to  be  tried  before  a  jury  especially  as  to  the 
amount  of  the  damages  to  be  awarded.  The  property  owners  pro- 
tested, claiming  that  the  provision  of  the  Code  was  unconstitutional 
and  that  it  could  not  have  application  to  cases  that  were  brought  on 
the  equity  side  of  the  court.  The  result  was  that  the  Court  of 
Appeals  in  the  case  of  Shepard  et  al.  v.  Manhattan  Elevated  Railroad 
Co.  (131  N.  Y.,  page  215),  held  in  favor  of  the  property  owners 
and  declared  that  in  such  cases  the  railroad  company,  which  was 
constantly  struggling  to  bring  these  questions  before  juries,  should 
not  have  the  right  to  do  so. 

Thus  the  history  of  the  elevated  railroad  litigation  in  New  York 
city  is  uniform  in  this  respect,  that  there  has  been  a  constant  struggle 
on  the  part  of  the  railroad  company  to  have  the  compensation  of 
property  owners  fixed  by  a  jury,  and  a  struggle  on  the  part  of  the 
property  owners  to  have  the  question  tried  either  before  a  court  or 
before  commissioners.  That  being  the  case,  why  was  the  application 
made  to  compel  the  property  owners  to  present  their  issues  to  juries 


654  REVISED  RECORD.  [Thursday, 

and  why  is  this  proposition  now  made  to  this  Convention  to  have  the 
organic  law  changed  so  that  the  property  owner  should  have  the 
option  of  a  trial  before  a  jury?  The  property  owner  does  not  desire 
it,  there  is  no  demand  for  this  provision  by  him.  There  is,  however, 
it  seems  to  me,  a  very  good  reason  why  such  an  application  should 
now  be  desired  by  the  railroad  company.  There  is  pending 
before  the  people  of  the  city  of  New  York  the  question  as  to  whether 
they  shall  have  a  new  and  improved  method  of  rapid  transit,  either 
by  means  of  an  underground  or  by  means  of  a  new  elevated  railroad. 
That  new  railroad  company  will  have  obstacles  placed  in  its  way, 
probably  by  the  present  elevated  railroad  company.  It  is  not  for 
the  interest  of  the  present  railroad  company  to  permit  another  com- 
petitor to  come  into  the  field.  Even  if  that  railroad  should  be 
constructed,  every  year's  delay  is  worth  thousands  of  thousands 
of  dollars  to  the  existing  railway  company,  and  it  is  very  easy  —  I 
think  that  any  good  lawyer  would  take  the  contract  to  keep  a  new 
railroad  out  of  operation  by  the  aid  of  such  a  provision  as  this 
for  quite  a  number  of  years  —  by  inducing  property  owners  along 
the  line  of  the  railroad  to  make  objections;  to  demand  trials  by 
jury;  to  interpose  the  delays  incident  to  the  cumbersome  method  of 
trial  by  jury  of  the  questions  arising  in  condemnation  proceedings. 
I  do  not  think  that  there  is  a  lawyer  in  this  Convention  who  would 
not  be  able  to  make  a  long  and  wearisome  contest,  one  which 
would  vex  and  harass  the  new  railroad  enterprise,  and,  perhaps, 
cause  those  interested  in  it  to  lose  heart  and  to  give  up  the  venture. 
It  would,  at  least,  leave  in  possession  of  the  field  the  corporation 
which  is  now  engaged  in  managing  the  elevated  •  railroad  system 
of  the  city  of  New  York. 

The  suggestion  has  been  made  here  that  the  railroad  company 
has  a  right  of  immediately  going  into  possession  of  its  proposed 
route  and  building  its  railroad  before  an  assessment  of  damages  is 
attempted.  That  proposition  is  an  erroneous  one  as  a  proposition 
of  law  under  our  existing  laws  and  statutes.  The  elevated  railroad 
company  has  been  instanced  as  an  example  of  a  case  where  a  rail- 
road was  constructed  before  damages  were  assessed.  The  reason 
in  that  case  is  a  very  apparent  one.  It  was  supposed  when  the 
elevated  railroads  were  constructed  in  the  city  of  New  York  that 
there  was  no  property  interest  in  the  streets  in  the  adjacent  abutting 
owners  which  was  affected,  and  it  was  not  until  the  Story  case 
was  decided  in  the  goth  New  York,  after  the  completion  of  the 
elevated  railroad,  that  the  Court  of  Appeals,  after  a  long  controversy 
and  with  great  difficulty,  reached  the  conclusion  that  the  abutting 
owner  had  a  right  and  easement  which  was  interfered  with,  which 


August  16.]  CONSTITUTIONAL  CONVENTION.  655 

was  "  a  taking  of  property ''  within  the  meaning  of  the  Constitution 
when  the  elevated  railroad  was  constructed  and  operated.  Then  the 
question  came  up  as  to  what  the  relief  should  be,  and  the  Court' 
of  Appeals  very  properly  held  that  the  railroad  having  been  con- 
structed, there  should  be  no  injunction  against  its  operation,  pro- 
vided it  should,  within  a  certain  period  of  time  fixed  by  the  court, 
institute  proceedings  for  the  condemnation  of  the  property,  or 
should  pay  a  certain  amount  of  damages  fixed  by  the  court  as  com- 
pensation for  the  right  taken  in  lieu  thereof. 

Mr.  A.  H.  Green  —  Does  the  gentleman  claim  it  to  be  the  law, 
in  reference  to  the  new  elevated  railroad,  that  it  cannot  take  posses- 
sion of  the  property  upon  which  it  is  to  be  constructed  before 
condemnation? 

Mr.  Marshall  —  I  claim  it  has  no  right  to  take  the  property  if  this 
proposed  constitutional  amendment  is  adopted  before  condemnation. 

Mr.  Green  —  What  is  the  law? 

Mr.  Marshall  —  I  say  that  is  the  law,  especially  since  this  pro- 
posed amendment  would  operate  as  a  supercedure  of  the  provisions 
of  the  rapid  transit  act,  relating  to  condemnation,  which  refers  to 
the  appointment  of  commissioners  alone,  and  not  to  trial  by  jury. 
But,  to  resume.  I  have  brought  actions  over  and  over  again  against 
street  railroads,  obtaining  injunctions  restraining  them  from  laying 
down  their  tracks  or  operating  their  railroads  until  they  had  made 
compensation  to  the  abutting  owners  or  to  steam  railroads  whose 
property  was  taken  or  interfered  with  without  resorting  to  con- 
demnation proceedings.  Injunction  after  injunction  has  been 
obtained  against  steam  railroads  and  other  corporations  who  have 
assumed  to  take  possession  of  property  before  there  had  been  a 
proceeding  instituted  by  condemnation  and  compensation  made  or 
provided  for. 

I  think  I  have  said  all  that  I  care  to  say  upon  the  branch  of  the 
subject.  There  is  much  in  these  suggestions  to  make  us  pause 
before  we  put  our  sign  manual  to  any  amendment  of  the  Constitu- 
tion which  will  be  susceptible  of  an  interpretation  and  use  which 
would  be  injurious  to  the  public  interest.  There  is  no  demand  for 
such  a  constitutional  provision  as  this.  Everybody  who  has  had 
any  experience  with  the  condemnation  of  land  knows  that  the 
present  system  affords  adequate  protection  to  the  property  owner. 
There  never  has  been  a  piece  of  property  condemned,  to  my  knowl- 
edge, in  Central  New  York,  for  example,  when  the  West  Shore 
and  other  railroads  were  constructed,  where  the  property  owner 
did  not  secure  a  much  larger  compensation  than  the  actual  value 


656  REVISED  RECORD.  [Thursday, 

of  his  property,  and,  I  believe,  more  than  he  would  have  obtained 
from  a  jury,  had  the  question  been  tried  before  such  a  tribunal. 
I  remember  that  the  Delaware,  Lackawanna  and  Western  Railroad 
Company  was  required  by  a  commission  to  pay  to  the  owners  of 
the  Bennett  elevator,  in  Buffalo,  the  enormous  sum  of  $385,000 
for  a  single  piece  of  property.  A  jury  would  have  been  appalled 
by  these  figures.  For  these  reasons  I  think  that  we  should  get 
through  with  this  provision  once  for  all,  and  defeat  it  to-night. 

Mr.  Francis  —  Mr.  Chairman,  I  do  not  propose  to  enter  into  this 
discussion  further  than  to  correct  what  seems  to  be  a  misconception, 
in  reference  to  this  proposed  amendment  of  the  Constitution  and  all 
measures  of  a  kindred  character.  It  has  been  my  effort  in  com- 
mittee, and  I  betray  no  secret  of  executive  session  —  it  is  known 
to  all  the  members  —  I  have  earnestly  opposed  every  suggestion 
and  measure  of  the  sort  as  being  purely  legislative,  and  matters 
with  which  we  have  nothing  to  do,  and  which  could  only  properly 
be  acted  upon  by  the  Legislature.  Saying  so  much  as  this,  I  shall 
be  content  to  cast  my  vote  against  this  measure. 

Mr.  Hawley  —  Mr.  Chairman,  when  the  discussion  opened  this 
afternoon  I  called  the  attention  of  the  proposer  of  this  amendment 
to  its  scope,  and  he  promptly  admitted  that  it  covered  a  great 
deal  more  ground  than  he  desired  to  have  it  cover,  and  immediately 
proposed,  and  did,  by  the  amendment  which  is  now  under  discus- 
sion, emasculate  the  amendment  as  it  was  reported  by  the  committee 
by  the  insertion  of  a  lot  of  exceptions.  I  think  that  he  would  have 
improved  the  amendment,  if  he  had  made  no  exception,  but  had 
made  the  State  itself  subject  to  the  provisions  which  he  desired  to 
incorporate  into  it.  I  know  of  no  reason  why  the  State  should 
not  do  as  ample  justice  to  a  citizen,  when  it  takes  his  property  by 
the  strong  hand,  as  a  little  railroad  that  is  a  great  convenience  to  a 
neighborhood,  and  I  know  of  no  superiority,  no  better  fortune  that 
is  likely  to  await  a  private  land  owner  in  the  Board  of  Claims  than 
that  which  would  be  likely  to  come  to  him  from  a  commission 
selected  by  a  justice  of  the  Supreme  Court.  And  I  do  not  think  I 
go  very  far  from  the  general  experience  of  those  who  have  had 
any  experience  on  the  subject,  when  I  say  that  they  would  prefer 
to  have  their  private  rights  adjudicated  in  almost  any  other  tri- 
bunal than  the  Board  of  Claims,  where  the  title  to  approval  depends 
upon  the  smallness  of  the  yearly  footing  of  the  judgments  against 
the  State. 

But,  Mr.  Chairman,  when  I  first  sought  to  get  the  floor  I  had  no 
intention  of  saying  just  what  I  have  now  said;  I  only  wanted  to  tres- 
pass upon  the  good  nature  of  my  friend  who  introduced  this  amend- 


August  16.]  CONSTITUTIONAL  CONVENTION.  657 

nient,  by  calling  his  attention  to  another  great  interest  with  which, 
probably,  he  has  had  no  experience,  but  which  is  a  great,  an  import- 
ant, interest  in  the  rural  sections  of  the  State,  and  that  is  to  the 
effect  of  this  amendment  upon  the  statutory  system  which  we 
have  for  the  drainage  of  land.  We  have  a  system  by  which  we  can 
get  a  right  of  way  for  a  ditch  through  a  territory  of  any  extent, 
the  effect  of  which  is  to  drain  large  tracts  of  marshy  land  which  are 
detrimental  to  the  public  health.  That  is  done,  not  by  any  civil 
division  of  the  State,  not  by  any  corporation,  but  by  certain  drainage 
commissioners  provided  for  by  the  statute.  Now,  within  the  last 
few  years  I  have  had  a  little  experience  in  one  of  these  cases.  The 
parties  numbered  over  150,  every  one  of  them  being  opposed  to 
the  improvement,  which  was  necessary  for  the  public  health  and  for 
the  reclaiming  of  a  large  tract  of  territory.  And,  if  this  amend- 
ment had  been  in  force,  that  improvement  could  not  have  been 
made  in  ten  years  in  the  county  of  Seneca,  because  there  would 
have  been  150  jury  trials.  We  have  two  Circuits  a  year  in  that 
county  and  they  last  about  a  week  each.  Now,  there  is  a  great 
public  interest.  The  trouble  with  these  gentlemen  is  that  they  are 
seeking  to  uproot  a  real  or  a  fancied  evil,  which  is  local  in  its  char- 
acter; and,  therefore,  Mr.  Chairman,  I  venture  to  propose  as  an 
amendment  to  this  section  that  its  operations  be  confined  to  the 
counties  of  New  York  and  Kings. 

Mr.  Moore  —  Mr.  Chairman,  I  desire  to  say  a  single  word  upon 
this  proposed  amendment.  I  believe  that  we  are  here  in  the  interest 
of  the  people;  and  after  listening  to  all  this  debate,  to  various  rea- 
sons assigned  pro  and  con,  I  cannot  see  that  the  interests  of  the  people 
will  be  subserved  by  changing  the  present  wording  of  the 
Constitution.  It  looks  to  me,  from  all  that  I  can  learn,  that  this 
amendment  is  a  sort  of  matter  between  two  elevated  railroads,  one 
in  being  and  the  other  about  to  be  in  being,  or  else  two  that  are  in 
being.  That  is  the  way  it  looks  to  me.  And  also  this  seems  to  be 
a  sort  of  a  mermaid  proposition;  very  fair  at  the  top,  but  slimy  and 
scaly  underneath;  I  do  not  believe  that  the  people  will  derive  any 
advantage  from  a  change  in  the  organic  law  of  the  State  upon  this 
question;  therefore,  Mr.  Chairman,  I  shall  cast  my  vote  against  the 
proposed  amendment. 

Mr.  Marks  —  Mr.  Chairman,  before  answering  a  few  of  the 
questions  which  have  been  propounded  I  desire  to  call  attention  to 
the  statement  made  by  me  as  to  the  words  "  by  request "  being  put 
in  the  amendment.  I  find  that  on  the  indorsement  the  words  "  by 
request"  are  written  in  typewriting  by  the  typewriter,  but  on  the 
42 


658  REVISED  RECORD.  [Thursday, 

inside  I  find  that  the  Secretary  wrote  it  himself  in  ink.  It  is  not  in 
my  handwriting,  but  I  think  it  is  due  to  the  Secretary  to  say  that  he 
probably  was  justified  in  putting  in  the  words  "  by  request,"  as  he 
saw  those  words  on  the  back  of  the  amendment  handed  in  by  tne 
Committee  on  Preamble,  as  the  typewriter  had  so  indorsed  it,  and 
the  Secretary  copied  from  the  indorsement  of  the  amendment  and 
put  the  words  at  the  heading  of  the  amendment  and  sent  it  in  that 
form  to  the  printer.  I  examined  the  amendment  when  I  discovered 
the  words  "  by  request "  printed  and  found  them  in  the  handwriting 
of  the  Clerk  on  the  inside.  I  did  not  examine  the  paper  cover  of 
the  amendment,  where  the  typewriter  had,  by  mistake,  put  on  the 
words  "  by  request."  When  the  mistake  occurred  once  before  you 
will  find,  by  referring  to  the  debates,  that  I  corrected  it.  The  Clerk 
in  reading  the  report  of  the  committee,  or  the  stenographer  in 
taking  it  down,  put  in  that  the  amendment  was  introduced  by 
request,  when  it  should  have  read  that  the  adverse  report  was 
made  by  request. 

Now,  Mr.  Chairman,  a  proposition  comes  here  from  Buffalo, 
where,  I  believe  and  have  heard  that  they  do  not  want  commis- 
sioners, but  desire  a  jury  to  fix  the  value  of  property  taken  for 
private  purposes.  I  call  your  attention  to  No.  230  of  the  proposed 
constitutional  amendments  proposed  by  Air.  G.  A.'  Davis,  a  very 
distinguished  member  of  this  Convention,  from  Buffalo,  which 
amendment  is  to  the  same  effect  as  mine,  and  reads  that  compensa- 
tion "  shall  be  ascertained  by  a  jury  or  by  not  less  than  three 
commissioners  at  the  election  of  the  property  owner,  said  jury  to  be 
impaneled  in  the  same  manner  as  juries  for  the  trial  of  a  cause  in  a 
court  of  record,  and  said  commissioners  to  be  appointed  by  a  court 
of  record  as  shall  be  prescribed  by  law."  And  then  that  gentleman 
from  Buffalo  goes  on  in  his  amendment  and  provides  that  "  the 
necessary  use  of  lands  for  the  construction  and  operation  of  works 
serving  to  retain,  exclude  or  convey  water  for  agricultural,  mining, 
milling,  domestic  or  sanitary  purposes,  is  hereby  declared  to  be  a 
public  use."  And  the  remainder  of  his  amendment  is  the  same 
as  mine.  So  that  I  am  not  alone  in  the  Convention 'in  proposing 
amendments  to  the  Constitution  to  the  effect  that  the  owner  of 
property  shall  have  the  right  to  demand  a  jury  when  his  property 
is  going  to  be  taken  from  him.  We  have  spent  week  after  week 
passing  amendments  to  prevent  sneaky  legislation  by  the  Legisla- 
ture. My  friend,  Mr.  Vedder,  has  spent  days  and  days  in  discussing 
his  amendment  to  secure  great  publicity  and  deliberation  in  the 
passage  of  bills  by  the  Legislature,  so  that  the  people  may  know 
what  the  Legislature  is  doing  and  prevent  sneaky  legislation. 


August  16.]  CONSTITUTIONAL  CONVENTION.  659 

We  are  here  to  prevent  the  Legislature  from  depriving  cities  of 
home  rule.  We  do  not  trust  the  Legislature,  because  they  change 
our  charters  every  year.  We  passed  an  amendment  to-day  relat- 
ing to  supply  bills  and  appropriation  bills  that  will  prevent  the 
Legislature  from  tacking  a  rider  on  a  bill  so  that  money  will  be 
appropriated  for  another  purpose  than  shall  relate  specifically  to 
some  particular  subject  in  the  bill.  Why  do  we  do  that  if  we  can 
trust  the  Legislature?  My  friend  on  my  left  has  asked  who  has  peti- 
tioned for  this?  Why,  gentlemen,  we  do  not  recognize  petitions. 
The  woman  suffragists  claimed  that  they  had  a  genuine  petition 
of  626,000  people  of  the  State  of  New  York  before  you  on  the  ques- 
tion of  woman's  suffrage,  and  we  paid  no  attention  to  that.  We 
voted  according  to  our  own  convictions  and  according  to  what  we 
believed  to  be  for  the  best  interests  of  the  State  and  I  don't  think 
it  necessary  that  we  should  have  petitions  for  the  change  I  propose, 
when  the  principle  is  right  and  when  the  change  is  justified  by 
existing  abuses. 

Mr.  Dickey  —  Mr.  Chairman,  I  would  like  to  ask  the  gentleman 
how  he  voted  on  that  proposition? 

Mr.  Marks  —  The  record  will  show  how  I  voted  on  that  proposi- 
tion. These  proceedings  in  which  it  is  claimed  the  elevated  railroad 
companies  have  been  trying  to  get  jury  trials  were  actions  to 
recover  damages  for  loss  of  rent  and  damages  to  the  fee,  which  are 
entirely  different  from  proceedings  to  take  property  by  the  right  of 
eminent  domain.  My  friend,  Governor  Alvord,  says  that  we  must 
address  the  Legislature.  He  knows  the  Legislature  does  not  afford 
relief.  We  are  here  correcting  and  prescribing  for  and  limiting  the 
Legislature.  This  amendment  should  be  a  part  of  the  fundamental 
law  so  that  no  property  shall  be  taken  from  a  person,  unless  he  has 
the  right  to  a  jury  trial,  if  he  wishes  it.  That  is  all  there  is  of  the 
proposition.  He  says :  "  You  can  trust  your  judges." 

I  have  another  extract  from  the  New  York  Sun  of  a  few  days 
ago,  which  I  will  read: 

"  When  a  motion  to  confirm  the  report  of  the  commissioners  for 
six-cent  damages  in  a  suit  of  a  property  owner  on  Mrytle  avenue 
against  the  Brooklyn  Elevated  Railway  Company  came  up  in  the 
Supreme  Court  yesterday,  the  lawyers  for  the  company  asked  leave 
to  withdraw  it,  but  Justice  Gaynor  would  not  allow  the  case  to  be 
so  disposed  of.  This  is  the  Supreme  Court,  Justice  Gaynor  said, 
no  matter  who  sits  here,  it  matters  not  a  whistle  who  sits  here. 
Lawyer  Sidney  V.  Lowell,  who  appeared  for  the  property  owner, 
said  the  company  wanted  to  pick  a  judge  before  whom  to  make  the 


660  REVISED  RECORD.  [Thursday, 

motion  and  declared  that  no  such  judicial  outrage  as  those  six-cent 
damages  awards  had  ever  been  committed." 

Isn't  that  enough  to  show  the  scandal  and  the  disgrace  with 
which  these  commissioners'  proceedings  are  viewed  by  the  public 
at  large?  Here  is  another  extract  from  the  New  York  Sun  of 
another  date  in  an  entirely  different  case  from  the  one  last  men- 
tioned, and  also  reported  only  a  few  days  ago: 

"  The  General  Term  of  the  Supreme  Court  in  Brooklyn  has  con- 
firmed the  decision  of  Justice  Gaynor,  setting  aside  the  award  of 
six  cents  damages  made  by  commissioners.  Chief  Justice  Brown, 
who  writes  the  decision  of  the  General  Term,  says: 

"A  trial  conducted  as  these  were  is  a  farce  and  the  misconduct 
of  the  commissioners  deprived  the  reports  of  that  respect  which 
is  always  due  to  the  determination  of  a  judicial  tribunal." 

Is  it  necessary  to  go  around  the  State  to  get  petitions  to  a  propo- 
sition which  I  claim  is  fair  and  should  be  fundamental  law? 

Lawyer  John  R.  Dos  Passes,  a  well-known  attorney  in  the  city  of 
New  York,  in  an  interview  with  a  reporter  of  the  New  York  Herald, 
relating  to  my  amendment,  said,  a  few  days  ago,  and  I  quote  from 
the  New  York  Herald: 

"  I  think  the  proposed  amendment  to  the  Constitution  a  very  rea- 
sonable and  important  one.  Heretofore  the  method  of  paying  for 
property  acquired  for  public  use  has  been  regulated  in  a  manner 
quite  unsatisfactory  to  both  the  corporation  condemning  the  prop- 
erty and  to  the  owner  thereof.  There  has  always  been  a  feeling 
that  the  commission  appointed  Was  either  in  the  interest  of  the 
corporation,  or  of  the  persons  whose  property  was  taken,  and  in 
very  few  instances  have  those  proceedings  passed  through  the  court 
without  more  or  less  public  or  private  suspicion  and  comment.  The 
right  given  by  the  proposed  amendment  to  the  owner  of  property 
to  have  the  jury  ascertain  the  compensation  to  be  made,  is  one 
eminently  in  keeping  with  the  present  legal  system  and  with  the 
feelings  of  the  legal  profession.  I  think  it  will  meet  with  the  appro- 
bation of  all  property  owners,  but  I  believe  corporations  will  fight 
the  proposed  amendment,"  —  and,  Mr.  Chairman,  I  believe  they 
are  fighting  it  to-day,  and  are  spreading  rumors  and  endeavoring 
to  spell  out  some  possible  claim,  that  it  will  be  in  the  interest  of 
corporations ;  trying  to  give  false  color  to  a  measure  which  is  solely 
and  entirely  in  the  interest  of  the  people,  and  endeavoring  to  raise 
doubts  which  you  know  cannot  exist.  The  Herald  goes  on  to  state: 
"  General  Egbert  L.  Viele,  who  has  recently  been  examined  by  a 
parliamentary  committee  in  London  on  a  cognate  subject,  expressed 


August  16.]  CONSTITUTIONAL  CONVENTION.  66l 

the  opinion  that  no  private  property  should  be  taken  except  by 
a  jury." 

"  Mr.  Phillips,  of  the  real  estate  firm  of  C  J.  L.  Phillips  &  Co.," 
the  Herald  continues,  "  was  emphatic  in  his  belief  that  there  was  a 
great  demand  for  a  change  in  the  law.  Property  owners  under  the 
present  condemnation  proceedings  had  'no  guarantee  that  their 
rights  would  be  observed,  and  there  were  innumerable  instances  of 
injustice/' 

Gentlemen,  I  stand  here  simply  on  the  broad  principle  that  we 
should  have  incorporated  in  our  fundamental  law  a  proposition  that 
the  owner  of  property  taken  from  him  by  force,  having  no  say  as 
to  whether  he  wants  to  give  it  up  or  not,  shall  have  the  right  to 
say,  "  I  want  to  go  to  my  peers,  to  my  fellowmen,  and  have  them 
fix  the  compensation." 

Before  I  proposed  the  amendment  I  carefully  went  over  the  Con- 
stitutions and  the  statutes  of  the  various  States  of  the  Union,  and 
I  found  that  seventeen  States  in  the  Union,  by  their  Constitutions, 
and  twenty-two  other  States  of  the  Union,  by  statute,  guaranteed 
to  the  people  the  right  to  jury  trial  when  railroad  corporations  take 
property  for  public  use.  Is  that  not  a  record  to  be  followed?  Thirty- 
nine  States  out  of  forty-three  containing  the  principle,  either  in 
Constitutions  or  statutes.  Have  any  of  you  anything  to  say  against 
the  principle  involved?  Is  it  not  right  and  just?  Many  delegates 
to  this  Convention  also  approved  of  the  exception  of  the  State  and 
branches  of  the  State  government,  and  said  it  might  interfere  with 
their  manner  of  fixing  the  compensation  for  property.  And  mind 
you,  gentlemen,  it  is  not  a  jury  trial  to  take  the  property.  I  leave 
that  just  as  it  is.  Let  the  court  decide  whether  property  is  neces- 
sary to  be  taken  for  a  public  use.  I  simply  say  when  it  is  decided 
that  a  corporation  has  the  right  to  take  property  for  public  use  and 
that  it  must  be  surrendered  to  a  so-called  public  use,  give  the  owner, 
give  the  man  whose  property  is  taken,  it  may  be  all  he  has,  give 
him  the  right  to  say,  I  want  my  fellowmen,  the  men  who  live  in 
this  vicinity,  to  fix  the  value  of  my  property.  I  want  no  commis- 
sioners appointed  about  whom  I  know  nothing,  who  are  not 
selected  by  me.  I  do  not  select  commissioners  to  decide  my  cases. 
I  have  called  your  attention  to  the  proposition  of  Mr.  Davis,  of 
Buffalo.  I  am  not  particular  what  form  you  put  this  amendment  in. 
If  Mr.  Davis's  proposition  suits  you,  it  does  me.  My  amendment 
or  Mr.  Davis's  does  not  say  there  must  be  a  jury  trial.  It  is  optional 
with  the  owner.  If  a  client  whose  property  is  about  to  be  taken 
calls  on  you  and  asks:  Shall  I  demand  a  jury,  or  shall  I  go  to  com- 
missioners? You  know  vour  business.  You  know  the  situation 


662  REVISED  RECORD.  [Thursday, 

and  you  know  whether  or  not  a  jury  in  that  particular  case  would 
be  better  able  to  give  justice  or  whether  the  influences  may  be  such 
that  commissioners  cannot  be  trusted. 

If,  in  the  first  instance  you  do  not  think  that  a  jury  trial  should 
be  had,  let  me  give  you  another  suggestion  which  some  of  the 
States  in  the  Union  have  adopted.  They  provide  that  commis- 
sioners shall  be  appointed  first,  and  some  of  them  provide  that  after 
the  commissioners  report  the  value  of  the  property,  the  railroad 
company  or  the  corporation  has  the  right  to  enter  upon  the  prop- 
erty and  take  it  for  its  use,  and  if  the  owner  desires  to  appeal,  he 
can  do  so  to  a  jury  and  the  corporation  must  deposit  the  amount 
awarded  by  the  commissioners  into  court.  Other  States  have  laws 
which  say  that  no  man  shall  be  deprived  of  the  right  to  appeal  to 
a  jury  if  he  feels  aggrieved  at  the  award  of  the  commissioners.  If 
there  is  any  reason,  any  sense  or  any  justice,  why  in  the  first  instance 
you  do  not  wish  to  put  it  in  your  fundamental  law  that  a  man  is 
entitled  to  a  jury  trial;  if  you  are  going  to  deprive  a  man  of  a  jury 
trial  because  it  might  complicate  matters,  or  you  fear  the  bugaboo 
that  it  might  interfere  with  the  underground  road,  then,  in  the 
name  of  justice,  make  this  provision  that  commissioners  shall 
fix  the  compensation;  that  the  railroad  or  corporation  shall 
not  be  prevented  from  entering  upon  the  property  after 
the  commissioners  have  fixed  the  value,  but  then  make  a 
provision  that  if  the  owner  of  the  property  is  aggrieved  at  the 
award  of  the  commissioners  he  may  go  on  and  appeal  to  a  jury  as 
is  done  in  many  States.  The  appeal  to  a  jury  need  not  go  on  the 
calendar  the  same  as  other  cases,  but  a  special  jury  can  be  called  as 
were  called  when  highways  were  opened.  And  the  commissioners 
and  judges  will  know  that  a  jury  stands  ready  to  do  justice.  I  do 
not  care  how  you  do  it,  but  I  say,  this  is  the  place  to  establish  funda- 
mental law.  This  is  the  place  where  the  people  should  be  protected, 
and  in  the  name  of  all  that  is  just,  I  ask  you  to  adopt  some  proposi- 
tion to  correct  existing  and  possible  future  evils,  but  sustain  the 
principle  set  out  in  the  favorable  report  of  the  committee,  of  which 
committee  Mr.  Andrew  H.  Green,  who  so  ably  upholds  the  principle 
of  this  amendment,  is  a  member.  That  committee  have  come  to  the 
conclusion  that  the  proposition  is  right;  they  have  discussed  it,  they 
have  debated  it  day  after  day  and  week  after  week.  They  have 
been  first  on  one  side  and  then  on  the  other.  They  once,  against 
my  protest,  and  against  my  written  request  for  an  adverse  report, 
reported  an  amendment  that  it  should  be  at  the  request  of  either  of 
the  parties.  I  went  before  the  committee  and  said :  "  Gentlemen, 
I  do  not  want  an  amendment  that  it  shall  be  at  the  request  of  either 


August  16.]  CONSTITUTIONAL  CONVENTION.  663 

party.  This  Convention  have  beaten  it  once;  they  say  you  should 
not  give  a  jury  trial  when  required  by  either  party.  I  want  it  when 
required  by  the  owner."  The  committee  refused  at  first;  they  did 
refuse  to  give  me  an  adverse  report;  they  did  not  want  to  listen  to 
my  protest  that  you  could  not  consistently  vote  for  such  an  amend- 
ment after  defeating  the  first.  It  is  entered  on  the  Journal  that  I 
requested  an  adverse  report  in  writing.  They  handed  in  the  propo- 
sition that  it  should  be  when  required  by  either  party,  which  was 
substantially  the  same  as  I  first  proposed  it,  but  the  committee 
reconsidered  the  question  and  came  to  the  conclusion  that  this  was 
a  proper  subject  for  fundamental  law,  in  the  form  in  which  I 
reproposed  it  —  that  there  should  be  a  jury  when  demanded  by  the 
owner.  1  ask  you  to  do  what  is  fair  and  just,  and  that  is  to  estab- 
lish a  principle  in  your  Constitution  giving  to  the  people,  if  you  say 
it  should  not  be  given  to  corporations,  the  right  to  demand  a  jury 
trial  in  the  first  instance.  If  you  fear  delay  and  think  commissioners 
will  report  sooner  than  a  jury  trial  could  be  had,  and  do  not  wish  to 
prevent  a  corporation  from  entering  and  taking  advantage  of  the 
right  to  enter  on  the  land  after  the  commissioners  have  fixed  the 
value,  then,  by  all  means,  say  this  shall  not  prevent  the  right  to  an 
appeal  to  a  jury  from  an  award  of 'commissioners. 

Mr.  A.  H.  Green  —  Mr.  Chairman,  I  would  like  the  privilege  of 
recurring  once  more  to  this  matter.  Our  friend,  Mr.  Marshall,  seems 
to  think  that  there  is  no  legislation  that  authorizes  entering  upon 
private  property  without  paying  for  it.  In  the  laws  of  1894,  it  is 
stated  that:  "The  said  commissioners  shall  take  and  subscribe  the 
oath  required  by  the  twelfth  article  of  the  Constitution  of  the  State  of 
New  York  and  shall  forthwith  file  the  same  in  the  office  of  the  clerk 
of  the  county  in  which  said  city  is  situated.  On  filing  said  oath  in 
the  manner  provided  in  the  last  section,  the  said  city  shall  be  and 
become  seized  and  possessed  in  fee  absolute  of  all  those  parcels  of 
property  which 'are  on  the  maps  referred  to  in  section  forty  of  this 
act." 

And  the  said  board,  and  the  said  city,  and  any  person  or  persons 
acting  under  their  or  its  authority  may  enter  upon  and  use  and 
occupy  in  perpetuity  all  the  parcels  of  property  and  all  the  rights, 
terms,  franchises,  easements  or  privileges  appurtenant  to  any  part 
of  the  property  described  on  said  map,  etc.  Now  when  they  have 
acquired  the  right  to  that  property  they  are  to  sell  it  over  to  the 
corporation  and  the  city  is  to  issue  fifty  millions  of  bonds.  A  more 
injudicious  act  in  my  judgment  was  never  passed.  That  is  the  law 
authorizing  that  matter. 

Mr.  Mantanye  —  Mr.  Chairman,  it  seems  to  be  very  much  the 


664  REVISED  RECORD.  [Thursday, 

fashion  in  this  Convention,  when  gentlemen  desire  to  discredit  a 
proposition  which  has  been  made,  to  say  that  it  is  not  organic  but 
that  it  is  legislative,  or  else  they  say  that  it  is  in  the  interest  of  some 
corporation,  in  order  to  give  it  a  bad  character.  This  it  seems  is  a 
rule  that  is  adopted  by  even  the  friends  of  some  incipient  corpora- 
tions, or  those  who  expect  perhaps  to  be  interested  in  them,  of 
saying  that  some  other  corporation  may  profit  or  get  rights  under 
the  proposition.  It  seems  to  me  that  it  is  no  matter  who  may  get 
rights.  We  are  making  organic  law  here  or  are  proposing  organic 
law  for  all  the  people  of  this  State,  whether  it  may  be  individuals, 
partnerships,  joint-stock  associations  or  corporations,  which  are 
made  up,  of  course,  of  individual  stockholders.  Now  as  to  the 
suggestion  that  this  is  special  legislation,  or  that  it  is  legislation ;  if 
it  be  legislation,  then  the  whole  section  which  is  proposed  to  be 
amended  was  legislation,  and  has  been  from  the  time  when  the  Con- 
stitution was  formed.  Therefore,  to  act  upon  that  suggestion  would 
be  to  move  the  repeal,  or  to  suggest  that  that  section  be  repealed 
or  taken  out  of  the  Constitution.  It  seems  to  me  that  the  proposi- 
tion which  is  suggested  to  be  put  in  here  by  way  of  amendment, 
does  not  change  the  section  at  all  as  to  its  real  meaning,  or  what 
was  intended  by  it  when  the  section  became  a  part  of  the  Constitu- 
tion; because  the  section  as  it  stood  before  this  proposed  amend- 
ment, and  as  it  stands  now,  provided  that  where  property  was  taken 
for  public  use,  and  that  included  the  quasi-public  use  of  taking  it  for 
the  benefit  of  corporations,  like  railroad  corporations,  the  damages 
should  be  assessed  either  by  a  jury  or  by  commissioners,  and  then 
was  attached  the  provision  that  that  option  might  be  exercised  by 
the  Legislature.  Now,  in  my  mind,  at  least,  there  is  no  doubt  that 
it  was  the  intention  then  that  the  Legislature  would  pass  that  option 
over  to  the  individual,  or  the  person  or  company  whose  land  was 
being  taken;  but  the  Legislature  exercised  the  option  itself  instead 
of  giving  it  to  the  person,  and  made  the  provision  that  it  did. 

I  would  like  to  call  attention  to  the  history  of  the  legislation  that 
has  been  had  under  this  section.  The  Legislature  first  provided  that 
in  cases  where  property  was  taken  for  public  use  by  the  State  or  by 
municipal  corporations,  as,  for  instance,  in  case  of  taking-  land  for 
highways,  that  the  damages  should  first  be  assessed  by  commis- 
sioners appointed  by  the  Court  of  Common  Pleas,  or  the  County 
Court  of  the  county,  as  it  afterwards  became.  It  then  provided  that 
in  case  the  party  whose  land  was  taken  was  dissatisfied  with  that, 
he  could  take  an  appeal  from  that  assessment  in  a  very  simple 
way,  by  giving  notice  to  the  commissioners  of  the  highway,  or  the 
proper  officers,  that  at  a  certain  time  he  would  appear  before  the 


August  16.]  CONSTITUTIONAL  CONVENTION.  665 

town  clerk  of  the  town  and  have  a  jury  drawn  for  the  purpose  of 
reassessing  those  damages,  and  it  was  done;  they  were  drawn  from 
the  jury  list  of  the  town.  I  have  been  in  several  of  those  proceed- 
ings, and  I  can  say  that  the  proceedings  upon  that  appeal  before  the 
jury  were  much  cheaper,  much  quicker  and  easier  gotten  along  with 
than  were  the  proceedings  before  the  commissioners  previously. 
The  commissioners  were  entitled  to  three  or  four  dollars  a  day. 
Their  fees  were  stipulated,  and  they  would  spend  several  days, 
adjourning  from  time  to  time.  The  jury's  fees  were  fixed  by  law, 
and  nobody  could  change  them.  They  met  and  looked  over  the 
property,  heard  such  witnesses  as  they  wanted  to,  and  made  a 
finding  at  once. 

So  there  was  given  by  the  Legislature  in  those  cases  both  rights, 
first  by  the  commissioners  and  then  by  a  jury.  But  when  the 
railroad  corporations  began  to  grow  up  and  provision  was  made 
for  their  taking  land,  the  only  provision  which  was  made  was  that 
the  damages  should  be  assessed  by  commissioners.  There  was  no 
appeal  in  particular  from  that,  except  as  to  whether  their  proceed- 
ings were  regular  or  whether  they  had  violated  any  rules  of  evidence 
in  the  proceedings  before  them,  and,  if  so,  that  could  be  reviewed 
before  the  judge  before  whom  the  report  came  for  confirmation.  If 
there  was  an  error,  then  other  commissioners  were  appointed  and 
a  new  trial  was  had.  This  matter  continued  along  for  some  years. 
There  began  to  be  dissatisfaction  with  these  commissioners  who 
were  being  appointed.  It  was  felt  that  they  were,  perhaps,  inter- 
ested parties;  parties  whose  land  had  been  assessed  were  not  satis- 
fied with  the  way  things  were  going,  and  thought  that  they  ought 
to  have  an  appeal  to  a  jury  as  in  other  cases.  Application  was 
made  to  the  Legislature  from  time  to  time  to  have  the  law  changed 
in  those  cases  where  property  was  sought  to  be  taken  for  a  quasi 
public  purpose,  and  at  the  same  time  for  individual  use,  as  it  might 
be  said  to  have  it  assessed  at  least  in  the  same  way,  by  the  review 
of  a  jury  if  the  parties  were  dissatisfied  with  the  finding  of  the 
commissioners.  The  result  was  that  the  matter  was  equalized,  not 
in  that  way,  but  by  changing  the  manner  of  assessing  the  damages 
in  the  other  cases  where  the  property  was  taken  by  towns  by  wiping 
out  the  jury  clause. 

Now,  as  I  say,  this  provision  simply  comes  in  here  and  assures 
to  the  individual  whose  property  is  taken,  or  to  any  person,  whether 
he  be  a  natural  person  or  otherwise,  the  right  that  I  think  was 
intended  to  have  been  given  by  the  other  section  of  the  Constitu- 
tion. Is  assures  it  to  him  only  in  that  one  class  of  cases.  It  has 
been  suggested  here  that  there  is  a  general  wrong  in  this  section, 


666  REVISED  RECORD.  [Thursday, 

if  it  can  be  that  property  may  be  taken  before  the  price  for  it  has 
been  paid.  My  understanding  is  that  it  cannot.  If  the  party  whose 
property  is  being  taken  is  willing  and  desires  to  insist  upon  that 
right,  he  has  his  remedy  by  bringing  action  for  an  injunction  to 
restrain  the  public,  or  to  restrain  the  corporations  which  seek  to 
take  his  property,  from  entering  upon  or  using  it,  until  they  have 
paid  him  his  money.  In  cases  of  municipal  corporations,  the  rule 
is  generally  that  when  the  damages  are  assessed  the  person  whose 
land  is  being  taken  knows  that  his  money  is  surely  to  come,  the 
compensation  which  has  been  fixed  will  surely  come,  but  that  he  has 
to  go  through  with  the  usual  course  of  having  the  money  raised 
by  taxation  or  in  some  other  way,  and  so  he  allows  them  to  enter, 
allows  the  public  to  go  on  with  its  road  or  its  public  work,  what- 
ever it  may  be,  knowing  that  his  money  must  come.  If  there  is 
any  failure,  then  he  can  bring  his  action  to  set  aside  what  has  been 
done,  or  his  mandamus  to  enforce  the  right  to  it.  In  case  of  a  rail- 
road corporation,  it  is  found  by  experience  that  the  company  must 
have  title  to  its  land  anyway.  It  gets  no  title  until  it  has  paid  the 
compensation  that  has  been  assessed;  therefore,  it  cannot  give  a 
mortgage  to  secure  bondholders  and  make  the  necessary  loans 
which  must  be  made  to  go  on  with  its  business. 

So  that  adjusts  itself  in  that  way,  or,  if  the  party  is  not  satisfied 
to  wait,  he  can  bring  an  action  for  a  permanent  injunction,  and 
have  a  temporary  injunction  restraining  the  entry  upon  his  lands 
until  the  money  has  been  paid;  and  the  company  must  then  come 
in,  and,  if  it  desires  to  immediately  go  on,  it  may  have  the  injunction 
vacated  upon  its  giving  bonds,  or  making  a  deposit  to  cover  the 
payment  of  such  damages  as  may  accrue,  and  it  goes  on.  But 
really  in  that  case  it  amounts  to  a  payment  or  securing  payment 
before  the  entry  is  made,  unless  the  party  may  waive  it,  knowing 
that  the  money  must  necessarily  come  to  perfect  the  title. 

Now,  I  can  see  no  harm,  I  can  see  no  colored  gentleman  in  the 
fuel-pile  here  at  all,  as  some  sharp-eyed  people  would  seem  to  infer 
that  there  might  be.  It  is  a  very  plain  statement  that  in  case  an 
individual's  property  is  being  taken,  whether  it  is  a  natural  person 
or  a  corporation,  that  he  has  the  additional  right  of  electing  which 
he  will  have  to  assess  the  damages  —  a  jury  or  commissioners 
appointed.  I  can  see  no  reason  why  this  should  not  be  a  part  of 
the  law.  I  can  see  many  reasons  why  it  should;  and  that  this  sec- 
tion should  be  made  definite  and  certain  by  limiting  the  power  of 
the  Legislature,  when  we  have  seen  how  it  has  been  exercised  by 
providing  right  here  that  the  individual  in  those  cases  shall  be  per- 
mitted to  exercise  the  option  instead  of  the  Legislature,  when  in 


August  16.]  CONSTITUTIONAL  CONVENTION.  667 

that  case  the  Legislature  is  really  wiping  out  one  of  the  alternatives 
that  are  given  by  the  State. 

Mr.  Alvord  —  Mr.  Chairman,  for  the  purpose  of  permitting  the 
Convention,  when  they  shall  get  therein,  to  vote  directly  upon  this 
subject,  and  to  sit  again,  if  they  so  desire,  I  move  you,  sir,  that  the 
committee  do  now  rise,  report  progress  and  ask  leave  to  sit  again. 

The  Chairman  put  the  question  on  the  motion  of  Mr.  Alvord, 
and  it  was  determined  in  the  affirmative,  whereupon  the  committee 
arose  and  the  President  resumed  the  chair. 

Mr.  Durfee  —  Mr.  President,  the  Committee  of  the  Whole  have 
had  under  consideration  the  proposed  constitutional  amendment 
(printed  No.  385),  entitled,  "  Proposition  to  amend  section  7  of  arti- 
cle i  of  the  Constitution,  relating  to  the  taking  of  private  property 
for  public  use,"  have  made  some  progress  in  the  same,  but  not  hav- 
ing gone  through  therewith  have  instructed  the  Chairman  to  report 
that  fact  to  the  Convention,  and  ask  leave  to  sit  again. 

The  President  —  The  question  is  on  agreeing  to  the  report  of  the 
Committee  of  the  Whole. 

Mr.  Alvord  —  Mr.  President,  I  move  that  we  disagree  with  the 
report  of  the  committee,  and  that  the  amendment  be  rejected,  and 
upon  that  I  move  the  previous  question. 

Mr.  Dean  —  Mr.  President,  I  call  for  the  ayes  and  noes. 
Mr.  Marks  —  Mr.  President,  I  rise  to  a  point  of  order. 
The  President  —  The  gentleman  will  state  his  point  of  order. 

Mr.  Marks  —  My  point  of  order  is  that  no  delegate,  after  moving 
in  the  Committee  of  the  Whole  to  rise  and  report  progress  and  for 
leave  to  sit  again,  can,  by  any  such  scheme,  when  the  committee 
has  risen,  ask  to  disagree  with  the  report  of  the  committee  and  thus 
attempt  to  kill  the  measure,  and  at  the  same  time  and  in  the  same 
breath  move  the  previous  question  without  giving  gentlemen  an 
opportunity  to  debate  the  motion  to  disagree.  I  do  not  think  it  is 
fair,  I  do  not  think  it  is  in  order  to  move  to  disagree  with  the  report, 
and  at  the  same  time  move  the  previous  question,  and  cut  off  all 
debate. 

The  President  —  The  point  of  order  is  not  well  taken.  The  Chair 
will  state  that  the  question  and  the  only  question  to  be  put  is  on 
agreeing  with  the  report  of  the  committee  asking  leave  to  sit  again. 
If  that  should  be  refused,  then,  under  rule  29,  the  amendment  would 
be  subject  to  the  disposition  of  the  Convention. 

Mr.  Dean's  call  for  the  ayes  and  noes  was  sustained. 


668  REVISED  RECORD.  [Thursday, 

Mr.  Vedder  —  Mr.  President,  permit  me  to  ask  whether  the  ques- 
tion now  is  upon  agreeing  with  the  report  or  disagreeing  with  it? 

The  President  —  The  question  is  upon  agreeing  to  the  report. 
The  Secretary  proceeded  with  the  call  of  the  roll. 

Mr.  Marks  —  Mr.  President,  I  ask  to  be  excused  from  voting,  and 
will  briefly  state  my  reasons.  I  do  not  believe  that  this  is  a  fair 
way  to  treat  so  important  a  question.  I  am  still  of  the  opinion, 
Mr.  President,  that  corporations  have  been  endeavoring  to  create 
a  false  impression  as  to  the  nature  of  this  amendment.  If  this 
committee  is  given  leave  to  sit  again  and  the  members  are  dissatis- 
fied with  the  form  of  the  amendment  proposed,  if  that  amendment 
is  beaten  in  Committee  of  the  Whole,  the  committee  may  consider 
an  amendment  to  the  effect  that  the  Legislature  shall  not  pass  any 
laws  preventing  the  appeal  to  a  jury  by  the  owner  of  the  property, 
from  the  award  of  commissioners,  the  jury  to  be  summoned  at  once 
upon  application  of  the  owner,  and  providing  that  when  such  appeal 
is  taken  the  person  or  corporation  taking  the  property  shall,  upon 
depositing  with  the  court  the  amount  awarded  by  the  commissioners, 
be  entitled  to  enter  into  the  possession  of  the  property  condemned. 
That  would  remove  all  other  objections  that  the  delay  of  going  to 
a  jury  will  interfere  with  the  rights  of  the  people  in  any  way,  and,  if 
you  provide  for  summoning  a  jury  of  freeholders,  the  cases  will 
not  take  the  course  of  other  actions,  but  would  be  disposed  of  in 
two  or  three  weeks,  and  at  one  session.  It  would  be  speedy  and 
honest  justice.  I  think  this  motion  for  leave  to  sit  again  should  pre- 
vail so  that  we  in  some  shape  can  get  the  principle  embodied  in  our 
Constitution  giving  the  people  the  right  to  a  jury  trial  in  some  form 
or  another.  I  vote  aye. 

Mr.  Powell  —  Mr.  President,  as  one  of  those  who  have  taken 
some  interest  in  this  proposed  amendment,  I  ask  to  be  excused 
from  voting,  and  will  state  my  reasons.  Every  effort  has  been 
made  by  those  who  are  opposed  to  this  amendment  to  avoid 
a  fair  discussion  of  its  merits  and  to  mislead  the  minds  of  those  who 
have  desired  to  vote  fairly  upon  it.  There  is  only  one  question 
involved  in  this  proposed  amendment,  and  that  is  whether  or  not 
the  man  whose  property  is  taken  by  eminent  domain  by  a  private 
corporation  shall  be  denied  the  right  of  a  trial  by  jury.  Some  weeks 
since  we  glorified  the  jury  as  the  one  perfect  tribunal  for  the  deter- 
mination of  justice  between  individuals.  To-night  we  evidently 
intend,  by  our  votes,  to  say  that  while  the  jury  is  good  enough 
to  determine  between  individuals,  as  to  rights  in  dispute,  that  when 
it  comes  to  a  private  corporation,  a  jury  is  not  good  enough.  We 


August  16.]  CONSTITUTIONAL  CONVENTION.  669 

provide,  in  other  words,  in  the  Constitution  the  right  of  trial  by 
jury,,  and  to-night  we  say  that  when  the  property  of  the  private  citi- 
zen is  taken  by  a  corporation  he  shall  not  have  the  trial  by  jury; 
or,  if  we  do  not  put  it,  perhaps,  quite  so  emphatic  as  that,  we  deny 
him  the  right  to  demand  a  trial  by  jury. 

This,  sir,  is  a  question  entirely  between  the  private  corporations 
and  the  individual,  and  when  we  vote  against  it  we  say  here,  the 
representatives  of  the  people,  that  the  private  corporation  shall  have 
a  right  so  large  that  when  the  private  citizen  comes  into  conflict  with 
the  corporation  he  shall  be  denied  his  trial  by  jury.  Let  gentlemen 
go  on  record  as  they  see  fit.  I  withdraw  my  request  to  be  excused 
from  voting,  and  vote  aye. 

Leave  to  sit  again  was  refused  by  the  following  vote: 

Ayes  —  Messrs.  Arnold,  Barrow,  Blake,  Bowers,  Campbell,  Car- 
ter, Cassidy,  Coleman,  Cornwell,  Davenport,  Dean,  Deyo,  Dickey, 
Durfee,  Fitzgerald,  Forbes,  Galinger,  Gibney,  Giegerich,  Gilleran, 
Green,  A.  H.,  Green,  J.  L,  Hecker,  Hedges,  Hirschberg,  Hotchkiss, 
Hottenroth,  Kinkel,  Mantanye,  Marks,  McArthur,  McDonough, 
McLaughlin,  J.  W.,  Meyenborg,  Morton,  Mulqueen,  Nicoll,  Nos- 
trand,  Parker,  Pashley,  Peabody,  Peck,  Porter,  Powell,  Pratt, 
Putnam,  Rogers,  Speer,  Springweiler,  Sullivan,  W.,  Titus,  Towns, 
Tucker,  Turner,  Veeder,  Vogt,  Whitmyer,  Williams,  Wood- 
ward —  59. 

Noes  —  Messrs.  Abbott,  Acker,  Ackerly,  Allaben,  Alvord,  Baker, 
Banks,  Barhite,  Barnum,  Becker,  Brown,  E.  A.,  Brown,  E.  R., 
Cady,  Church,  Clark,  H.  A.,  Cochran,  Cookinham,  Countryman, 
Crosby,  Deady,  Deterling,  Doty,  Emmet,  Floyd,  Foote,  Francis, 
Frank,  Andrew,  Frank,  Augustus,  Fraser,  Fuller,  O.  A.,  Gilbert, 
Hawley,  Hill,  Holcomb,  Holls,  Johnson,  J.,  Johnston,  Kel- 
logg, Kimmey,  Kurth,  Lewis,  C.  H.,  Lewis,  M.  E.,  Lincoln,  Lyon, 
Manley,  Marshall,  Maybee,  McCurdy,  Mclntyre,  McKinstry, 
McLaughlin,  C.  B.,  McMillan,  Mereness,  Moore,  Nichols,  O'Brien, 
Osborn,  Parkhurst,  Phipps,  Pool,  Root,  Sanford,  Schumaker, 
Steele,  A.  B.,  Steele,  W.  H.,  Sullivan,  T.  A.,  Tibbetts,  Vedder,  Wel- 
lington, President  —  69. 

The  hour  of  10.07  P-  M.  having  arrived,  the  President  declared 
the  Convention  adjourned. 


670  REVISED  RECORD.  [Friday, 

Friday  Morning,  August  17,  1894. 

The  Constitutional  Convention  of  the  State  of  New  York  met 
in  the  Assembly  Chamber  at  the  Capitol,  Albany,  N.  Y.,  Friday 
morning,  August  17,  1894. 

President  Choate  called  the  Convention  to  order  at  ten  o'clock. 

The  Rev.  J.  J.  Thomson  offered  prayer. 

Mr.  O'Brien  —  Mr.  President,  I  move  the  reading  of  the  Journal 
of  yesterday  be  dispensed  with. 

The  President  put  the  question  on  the  motion  of  Mr.  O'Brien, 
and  it  was  determined  in  the  affirmative. 

Mr.  Porter  —  Mr.  President,  Mr.  Coleman  desires  to  be  excused 
for  Saturday  and  Monday. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Coleman,  and  it  was  determined  in  the  affirmative. 

Mr.  Crosby  —  Mr.  President,  Mr.  Kellogg  asks  to  be  excused 
until  Monday  afternoon  on  account  of  illness. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Kellogg,  and  it  was  determined  in  the  affirmative. 

Mr.  Pashley  —  Mr.  President,  I  ask  to  be  excused  for  the  whole 
of  Monday. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Pashley,  and  it  was  determined  in  the  affirmative. 

Mr.  C.  B.  McLaughlin  —  Mr.  President,  I  ask  to  be  excused  from 
the  afternoon  session  to-morrow. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  McLaughlin,  and  it  was  determined  in  the  affirmative. 

Mr.  Hotchkiss  —  Mr.  President,  I  ask  to  be  excused  after  this 
morning's  session  until  Monday  morning. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Hotchkiss,  and  it  was  determined  in  the  affirmative. 

Mr.  Giegerich  —  Mr.  President,  I  desire  to  be  excused  from 
attendance  to-morrow  afternoon. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Giegerich,  and  it  was  determined  in  the  affirmative. 

Mr.  Andrew  Frank  —  Mr.  President,  owing  to  the  illness  of  my 
partner  I  would  like  to  be  excused  until  next  Wednesday. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Frank,  and  it  was  determined  in  the  affirmative. 


August  17.]  CONSTITUTIONAL  CONVENTION.  6/1 

Mr.  Parmenter — Mr.  President,  I  ask  to  be  excused  until  Mon- 
day evening. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Parmenter,  and  it  was  determined  in  the  affirmative. 

Mr.  Spencer  —  I  ask  leave  of  absence  for  to-morrow. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Spencer,  and  it  was  determined  in  the  affirmative. 

Mr.  Bowers  —  I  ask  to  be  excused  from  this  afternoon's  session 
until  Monday  evening's  session. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Bowers,  and  it  was  determined  in  the  affirmative. 

The  President  —  The  Chair  would  remind  the  Convention  that  it 
is  responsible  for  the  presence  of  a  quorum  to-morrow. 

Mr.  Meyenborg  —  Mr.  President,  I  ask  to  be  excused  for 
Monday. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Meyenborg,  and  it  was  determined  in  the  affirmative. 

The  President  —  The  first  business  in  order  is  the  disposition  of 
Mr.  Marks's  amendment.  By  the  vote  taken  before  the  adjourn- 
ment of  the  Convention  last  evening,  the  Convention  refused  the 
Committee  of  the  Whole  leave  to  sit  again,  which  leaves  it  open 
for  the  immediate  consideration  of  the  Convention. 

Mr.  Cochran  —  Mr.  President,  with  the  consent  of  the  introducer 
of  that  amendment,  I  move  that  it  lie  on  the  table. 

The  President  —  The  Chair  is  of  the  opinion  that  that  is  where 
it  is  now.  The  rule  says  that  it  is  open  for  immediate  considera- 
tion. You  move  to  lay  it  on  the  table. 

Mr.  Foote  —  Mr.  President,  I  hope  this  motion  will  not  prevail. 
I  think  this  matter  should  be  disposed  of  now  — 

Mr.  Cochran  —  Mr.  President,  this  motion  is  not  debatable. 
The  President  —  It  is  not  debatable.     Mr.   Cochran  moves  to 
lay  Mr.  Marks's  amendment  on  the  table. 

Mr.  Dickey  —  Upon  that  I  demand  the  ayes  and  noes. 

The  President  —  Those  who  support  Mr.  Dickey's  call  for  the 
ayes  and  noes  will  please  rise  and  stand  until  they  are  counted  to 
the  number  of  fifteen. 

The  call  for  the  ayes  and  noes  was  not  sustained. 

The  President  put  the  question  on  the  motion  of  Mr.  Cochran, 
and  stated  that  the  effect  of  it  would  be  that  it  could  be  taken 
up  by  the  Convention  at  any  time  hereafter. 


672  REVISED  RECORD.  [Friday, 

The  motion  to  lay  on  the  table  was  lost. 

Mr.  Root  —  Mr.  President,  I  move  that  the  proposed  amendment 
be  "  rejected  entire." 

Mr.  Dickey  —  On  that,  Mr.  President,  I  demand  the  ayes  and 
noes. 

The  President  —  Those  who  support  Mr.  Dickey's  call  for  the 
ayes  and  noes  will  please  rise  and  stand  until  they  are  counted  to 
the  number  of  fifteen. 

The  call  is  obviously  sustained,  and  the  Secretary  will  call  the 
roll.  Those  in  favor  of  rejecting  the  amendment  entire  as  their 
names  are  called  will  say  aye  and  those  opposed  will  say  no. 

The  Secretary  proceeded  to  call  the  roll. 

Mr.  Marks  —  Mr.  President,  a  number  of  delegates  do  not  seem 
to  understand  the  effect  of  the  motion.  I  will  ask  the  President  to 
state  it. 

The  President  —  The  motion  is  to  reject  the  amendment  entire. 
Those  who  answer  "  aye  "  are  in  favor  of  rejecting  it  entire,  which 
lays  it  at  rest  forever. 

The  Secretary  again  proceeded  with  the  call  of  the  roll. 

Mr.  Dickey  —  Mr.  President,  I  ask  to  be  excused  from  voting, 
and  will  state  my  reasons.  I  will  say,  in  answer  to  the  suggestions 
of  Messrs.  Brown  and  Hawley,  when  the  matter  was  under  con- 
sideration last  night,  that  a  contingency  might  arise  in  their  respec- 
tive counties  where  they  have  but  few  courts,  and  they  might  have 
a  hearing  in  condemnation  proceedings,  because  they  have  so  few 
circuits  in  the  year,  that  they  ought  to  have  courts  enough  to  do 
their  business,  and  that  it  is  not  necessary  in  these  condemnation 
proceedings  to  have  them  tried  at  circuit.  The  Legislature  has  very 
well  provided  for  special  juries,  such  as  in  lunacy  and  other  special 
proceedings,  and,  instead  of  the  demand  for  a  jury  trial,  causing 
delay,  it  would  tend  to  expedition  — 

The  President  —  The  Convention  will  preserve  order  so  that 
Mr.  Dickey  can  be  heard.  (Laughter.) 

Mr.  Dickey  —  I  am  much  obliged  to  you,  Mr.  President,  because 
I  am  forced  to  strain  my  voice  in  order  to  obtain  the  attention  of 
the  Convention.  I  hope  the  members  will  give  me  their  attention, 
as  I  have  but  a  few  minutes  in  which  to  say  what  I  desire  on  the 
matter. 

As  the  law  is  now,  if  a  man  takes  an  umbrella  and  you  sue  him 
for  it,  you  are  entitled  to  a  jury.  If  a  corporation  takes  a  hundred 
thousand  dollars  of  real  estate  from  you,  you  are  not  entitled  to  a 


August  17.]  CONSTITUTIONAL  CONVENTION.  673 

jury.  The  corporation  can  pick  their  own  judge  and  can  have  com- 
missioners appointed  against  your  will  and  take  your  property  and 
you  can  have  absolutely  no  redress.  The  purpose  of  this  amend- 
ment is,  if  a  man's  property  is  taken,  to  have  a  trial  before  a  jury. 
Mr.  Marks  has  made  a  good  plucky  fight  for  the  people,  and,  if  it 
is  called  socialism,  I  am  going  to  vote  with  him,  and  I  ask  the  Con- 
vention to  vote  with  him  and  vote  against  the  motion  of  the  gentle- 
man from  New  York  to  reject  this  amendment.  (Applause.) 

Mr.  A.  H.  Green  —  Mr.  President,  I  ask  to  be  excused  from  vot- 
ing and  will  give  my  reasons.  I  regret  that  my  friend,  Mr.  Schu- 
maker,  is  not  in  his  seat  at  present.  He  mistakenly  stated  yester- 
day that  I  had  voted  against  this  proposition  that  I  now  advocate, 
and  which  I  believe  to  be  right  and  I  think  ought  to  be  adopted  by 
this  Convention.  He  stated  that  I  had  voted  against  this  in  com- 
mittee. I  have  no  doubt  that  Mr.  Schumaker  intended  to  state 
what  he  believed  to  be  correct.  I  will  take  the  liberty  of  reading 
from  the  minutes  of  the  meeting:  "  Mr.  Green  moved  that  this 
committee  approve  of  the  proposed  proposition  of  Mr.  Marks 
(No.  364).  The  motion  was  adopted."  When  this  matter  came 
up  on  the  final  vote  in  the  committee,  the  proposition  of  substituting 
the  right  for  a  jury,  the  option  on  the  part  of  the  property  owner 
for  a  jury,  as  against  giving  it  to  both  parties,  the  record  which  I 
have  here  shows  that  it  was  adopted,  six  in  the  affirmative  and  none 
in  the  negative.  It  was  adopted,  and  I  quote  this  from  the  minutes 
of  the  meeting  where  these  subjects  were  considered. 

Now,  sir,  as  I  said,  this  is  a  proposition  that  commends  itself 
to  the  judgment  of  every  fair-minded  man.  If  property  is  taken 
by  force  from  a  man,  he  should  have  the  option  of  saying  whether 
he  should  go  to  a  jury  or  not.  It. seems  to  me  to  be  a  fair  proposi- 
tion and  nobody  can  be  harmed  by  it. 

Mr.  J.  I.  Green  —  Mr.  President,  I  ask  to  be  excused  from  voting 
and  will  briefly  state  my  reasons.  In  all  the  discussions  upon  this 
question  I  have  not  heard,  Mr.  President,  a  single  gentleman  say 
that  this  amendment  is  wrong  in  principle.  As  I  understand  it,  it 
simply  gives  to  the  property  owner  the  option  of  saying  whether 
or  not  he  shall  have  his  matter  tried  by  a  jury  of  his  peers.  For 
that  reason,  sir,  I  believe  that  the  amendment  is  a  proper  and  just 
one,  and  I,  therefore,  withdraw  my  request  to  be  excused,  and 
vote  no. 

Mr.  Holls  —  Mr.  President,  I  ask  to  be  excused  from  voting,  and 
will  very  briefly  state  my  reasons.     In  its  present  form  I  think  this 
amendment  is  dangerous,  if  not  mischievous.     But  I  feel  satisfied 
43 


6/4  REVISED  RECORD.  [Friday, 

that  it  can  be  improved  and  that  the  present  methods  of  condemning 
property  in  very  many  ways  could  be  better.  If  this  motion  is  voted 
down,  it  seems  to  me  very  practical  to  send  this  amendment  to  the 
Judiciary  Committee  for  further  report.  It  seems  to  me  that  is  a 
wise  course  to  take.  I,  therefore,  withdraw  my  request  to  be 
excused,  and  vote  no. 

Mr.  Mantanye  —  Mr.  President,  I  ask  to  be  excused  from  vot- 
ing, and  will  state  my  reasons.  If  this  proposed  amendment  is  to 
be  rejected,  it  then  follows,  as  a  matter  of  course,  in  order  to  be 
consistent  and  honest,  that  this  Convention  must  amend  the  sec- 
tion in  question  by  striking  out  the  provision  that  is  in  there  now, 
for  a  trial  of  these  questions  as  to  the  valuation  of  land  taken  by 
jury.  It  says  in  that  section  now  that  the  damages  shall  be 
assessed  either  by  commissioners  or  by  a  jury  and  then  it  is  quali- 
fied by  the  following  words  which  say :  "  As  the  Legislature  may 
direct."  If  it  said  in  the  manner  as  the  Legislature  shall  direct, 
then,  of  course,  the  party  would  have  had  his  option;  but  with  that 
unfortunate  wording  the  Legislature  is  assumed  to  abolish  that 
alternative  for  jury  which  the  Constitution  intended  to  give.  So  I 
say,  to  be  consistent,  we  must  entirely  wipe  out  the  provision  for 
jury  and  not  leave  that  foolish  provision  there,  to  hold  out  to  the 
people  a  hope  that  they  may  have  a  jury  trial  which  they  cannot 
have.  If  my  home  is  taken  for  some  private  purpose,  my  household 
goods  and  gods  will  be  removed  somewhere  else,  and  I  say  that 
I  should  be  given  the  right  to  have  the  damages  assessed  in  a  way 
that  is  satisfactory  to  me.  Taking  these  matters  into  consideration, 
I  say  this  amendment  is  proper  and  not  objectionable,  and  I,  there- 
fore, withdraw  my  request  to  be  excused,  and  vote  no. 

Mr.  Marks  —  Mr.  President,  I  desire  to  be  excused  from  voting, 
and  will  state  my  reasons,  I  hope  that  this  Convention  will  not, 
at  this  stage,  reject  entirely  a  proposed  amendment,  which,  I 
believe,  is  the  broadest  amendment  in  the  interests  of  the  people  .of 
the  State  of  New  York  which  is  at  present  before  this  Convention. 
I  think  the  subject  is  important.  I  think  that  corporations  do  not 
want  it.  They  do  not  want  a  jury  to  fix  the  price  of  property  taken 
in  these  proceedings.  They  know  a  jury  will  be  fair,  and  they  fear 
what  is  fair.  I  beg  of  you  not  to  reject  it,  but  give  the  matter  fur- 
ther consideration.  There  are  a  number  of  delegates  who  voted 
against  the  proposition  who  have  informed  me  that  they  are  not 
yet  satisfied  that  they  did  right  in  voting  against  it.  Give  them 
a  chance  to  consider  it.  If  the  amendment  is  too  broad,  let  it  go 
back  into  the  Committee  of  the  Whole.  Why  do  not  the  self- 
constituted  leaders  on  the  floor  of  this  House,  who,  I  presume, 


August  17.]  CONSTITUTIONAL  CONVENTION.  675 

have  the  interests  of  the  people  at  heart,  enter  the  arena  and  battle 
for  the  rights  of  the  people,  let  them  take  it  under  consideration 
and  formulate  some  kind  of  an  amendment  in  the  interests  of  the 
people.  I  will  be  satisfied  with  any  kind  of  an  amendment  which 
gives  to  the  people  the  right  to  a  trial  by  jury.  Gentlemen,  do  not 
reject  the  report  of  your  Committee  on  Preamble  which  has 
reported  this  amendment  favorably.  Take  it  back  and  in  any  form 
provide  for  a  jury  trial.  You  have  suggested  two  or  three  possible 
objections.  The  objections  are  that  it  might  interfere  with  rapid 
transit  in  the  city  of  New  York.  Now,  if  I  am  incorrect  in  my 
statement  as  to  the  underground  railroad  law,  I  wish  any  gentleman 
to  correct  me.  The  underground  railroad  in  the  city  of  New  York, 
under  the  laws  passed  by  the  Legislature,  will  have  the  right  to 
take  possession  of  the  property  before  the  award  is  made  in  con- 
demnation proceedings.  The  act  of  1894  gives  the  city  the  right 
to  the  fee  when  maps  are  filed.  Before  the  owners  of  property 
are  awarded  any  damage  for  their  property  taken,  the  city  may  let 
it  out  to  a  corporation  for  fifty  years  —  the  fee  of  the  property 
vests  in  the  city  before  the  owner  is  paid  one  cent.  I  hope,  gentle- 
men, you  will  not  imperil  the  work  of  this  body  before  the  people, 
but  give  every  gentleman  a  chance  in  the  Committee  of  the  Whole 
to  further  consider  this  matter  and  secure  the  result  desired.  The 
objection  that  a  jury  trial  would  delay  matters  is  also  without 
foundation,  as  a  jury,  drawn  as  in  civil  actions,  need  not  be  pro- 
vided for.  You  can  have  a  jury  drawn  as  the  practice  existed  in 
cases  of  highway  openings  in  the  country,  and  in  two  weeks  you 
have  had  a  verdict.  It  is  speedier  than  a  commission  or  any  jury 
trial.  I  withdraw  my  excuse,  and  vote  no. 

Mr.  C.  B.  McLaughlin  —  Mr.  President,  I  ask  to  be  excused 
from  voting,  and  will  state  my  reasons.  I  believe  the  Constitution, 
as  it  now  is  upon  this  subject,  is  much  better  than  it  would  be  if 
this  amendment  is  adopted.  Under  the  present  Constitution  of  the 
State,  the  Legislature  now  has  the  power  to  grant  trial  by  jury,  if 
that  is  thought  to  be  a  wise  way  of  assessing  damages  in  cases  of 
condemnation.  I  have  not,  as  yet,  heard  any  one  upon  this  floor 
say  that  an  application  has  been  made  to  the  Legislature  for  trial 
by  jury  and  that  such  an  application  has  been  denied.  I  have  yet  to 
hear  that  any  complaint  has  been  made  by  the  property  owners  of 
the  city  of  New  York  or  any  other  place  in  this  State,  that  they  are 
not  entirely  satisfied  with  the  present  system  of  the  assessment 
of  damages.  Why!  the  gentleman  who  introduced  this  amendment, 
Mr.  Marks,  made  the  very  best  argument  that  could  be  made  for  the 
present  system.  He  called  the  attention  of  this  Convention  to  a 


676  REVISED  RECORD.  [Friday, 

case  in  which  the  Supreme  Court,  sitting  at  Special  Term,  set  aside 
an  assessment  of  damages  and  that  was  affirmed  by  the  General 
Term.  Now,  that  is  where  the  rights  of  property  owners  to-day 
are  protected.  If  the  gentlemen  from  New  York  city  want  this, 
I  have  not  a  word  to  say;  but,  in  my  judgment,  the  balance  of  the 
State  does  not  want  it.  We  are  satisfied  with  the  Constitution,  as 
it  now  is.  I  withdraw  my  request  to  be  excused  from  voting,  and 
vote  aye. 

Mr.  Moore  —  Mr.  President,  I  desire  to  be  excused  from  voting, 
and  will  briefly  state  my  reasons.  I  am  not  opposed,  Mr.  President, 
to  the  principle  involved  in  this  proposed  amendment;  but  to  me  it 
seems  a  one-sided  thing  which  gives  one  party  the  opportunity  to 
select  the  tribunal  which  shall  fix  the  damages,  but  gives  the  other 
side  no  right.  I  think  the  people's  rights  are  as  well  preserved 
under  the  Constitution  as  it  now  stands,  because  they  have  the 
opportunity  to  go  to  the  Legislature  and  get  a  law  passed,  which 
will  enable  them  to  have  a  jury  trial  to  fix  the  compensation  for 
damages,  as  it  can  be  done  under  this  amendment.  I,  therefore, 
withdraw  my  request  to  be  excused,  and  vote  aye. 

Mr.  Powell  —  Mr.  President,  the  question  was  asked  here  last 
night  who  desires  this  change,  and  it  has  been  intimated  here  this 
morning  that  no  one  desires  it.  I  wish  to  answer  that  question  and 
that  proposition.  I  say  that  every  man  and  every  woman  who 
owns  property  on  the  line  of  the  elevated  roads  in  the  city  of  Brook- 
lyn desires  it.  I  wish  to  say  that  against  the  present  system  and 
the  present  method  of  condemning  property  there  is  a  universal 
cry  of  horror  in  the  city  of  Brooklyn.  The  rights  of  citizens  in 
block  after  block  all  along  the  lines  of  the  elevated  roads  are  being 
taken  away,  their  easements  being  destroyed  and  their  being 
granted  by  commissions,  in  instance  after  instance,  only  six  cents 
damages.  A  prominent  attorney  in  the  city  of  Brooklyn  told  me 
the  other  day  that  he  had  advised  a  property  owner  who  owned  ten 
lots  along  the  line  of  the  elevated  railroad  to  settle  for  almost  any- 
thing he  could  get,  rather  than  trust  one  of  those  commissions  to 
determine  the  damages.  And  so  by  the  pressure  of  the  present 
system,  as  it  works  in  the  city  of  Brooklyn,  property  owner  after 
property  owner  is  sacrificing  his  rights  for  a  mere  mess  of  porridge. 
The  city  of  Brooklyn  asks  that  this  present  method  of  condemning 
property  be  changed.  I,  sir,  withdraw  my  request  to  be  excused 
from  voting,  and  vote  no. 

Mr.  Roche — Mr.  President.  I  ask  to  be  excused  from  voting 
and  will  briefly  state  my  reasons.  I  understand  that  the  effect  of 


August  17.]  CONSTITUTIONAL  CONVENTION.  677 

an  affirmative  vote  in  this  case  will  be  to  effectually  kill  this  proposi- 
tion, and,  as  there  is  no  other  amendment  before  the  Convention 
upon  this  subject,  that  it  will  thereby  preclude  the  possibility  of  the 
Convention  taking  any  action  whatever  upon  the  subject-matter 
of  this  proposition.  Now,  I  am  not  satisfied  with  the  amendment 
of  Mr.  Marks.  I  think  it  is  capable  of  considerable  improvement. 
I  understand  there  are  some  delegates  who  have  propositions  or 
proposed  amendments  which  they  are  ready  to  offer,  with  a  view 
to  perfecting  this  amendment  of  Mr.  Marks.  I  think,  therefore, 
that  a  fair  opportunity  ought  to  be  given  to  them  for  their  presenta- 
tion and  for  the  further  consideration  of  this  matter  by  the  Conven- 
tion itself.  In  order  that  that  may  be  done,  I  withdraw  my  request 
to  be  excused  from  voting,  and  vote  no. 

Mr.  Schumaker  —  Mr.  President,  I  ask  to  be  excused  from  vot- 
ing, and  will  state  my  reasons.  I  have  just  been  told  by  my  friend, 
Judge  Green,  that  he  has  made  a  statement  in  this  Convention  in 
relation  to  my  misapprehending  his  vote  in  the  committee.  Now, 
I  do  not  believe  in  telling  tales  out  of  school,  or  in  giving  any 
kind  of  a  description  of  this  dispute  on  this  matter  in  the  Com- 
mittee on  Preamble  and  Bill  of  Rights.  My  friend,  Judge  Green, 
was  opposed  to  anything  that  would  give  the  municipalities  of  New 
York  a  right  to  call  a  jury,  and  I  understood  him  to  vote  against 
this  measure.  I  think  that  he  did,  and  I  would  not  have  said 
anything  about  it  if  Mr.  Francis  was  in  his  seat  when  the  gentleman 
asked  whether  this  was  a  unanimous  report.  I  looked  around  and 
he  was  not  there,  and  Mr.  Alvord  was  not  there,  and  I  said  it  was 
not  a  unanimous  report.  Now,  that  is  the  whole  matter.  Whether 
Judge  Green  voted  against  it  or  voted  for  it,  I  will  take  his  word 
as  to  how  he  voted.  That  is  all  there  is  about  it.  If  I  have  mis- 
understood him  and  misapprehended  his  meaning,  I  am  very  sorry 
for  it,  and,  therefore,  I  wish  to  ask  to  withdraw  my  request  to  be 
excused  from  voting,  and  vote  aye. 

Mr.  Smith  —  Mr.  President,  by  mistake  I  voted  when  the  name 
of  Mr.  Phipps  was  called.  I  ask  that  the  record  may  be  corrected. 

The  President — Is  Mr.  Phipps  present? 

Mr.  Phipps  —  Yes,  sir. 

The  President  —  Have  you  voted,  Mr.  Phipps? 

Mr.  Phipps  —  I  have  not. 

The  President  —  How  does  Mr.  Phipps  desire  to  vote? 

Mr.  Phipps  —  I  vote  aye. 

The  President  —  How  does  Mr.  Smith  vote? 


678  REVISED  RECORD.  [Friday, 

Mr.  Smith  —  I  vote  no. 

Mr.  Ackerly — Mr.  President,  I  wish  to  be  excused  from  voting,  and 
will  give  my  reasons  therefor.  I  was  absent  on  committee  work  on 
the  first  roll-call.  At  the  afternoon  session  yesterday  I  raised  objec- 
tion to  this  amendment  as  to  its  affecting  highways  especially. 
I  wish  to  say  that  during  recess  Mr.  Marks  prepared  an  amendment 
which  was  acceptable  to  me  and  submitted  it  at  the  evening  session, 
but  on  the  further  discussion  of  the  bill  during  the  evening  I  became 
satisfied  that  it  ought  not  to  pass  for  various  reasons.  One  of  them 
is  that  it  has  not  been  alleged  upon  this  floor  that  any  application 
has  been  made  to  the  Legislature  to  change  the  method  as  author- 
ized by  the  present  Constitution  and  has  been  refused.  And  for 
that  reason,  one  of  the  reasons,  I  withdraw  my  request  to  be 
excused,  and  vote  aye. 

Mr.  Becker  —  Mr.  President,  I  desire  to  be  excused  from  voting, 
and  will  state  my  reasons.  I  believe  this  measure  ought  to  be 
defeated  permanently.  I  do  not  see  how  it  can  be  amended  or  fixed 
up  so  as  to  bring  about  a  good  result,  either  for  the  people  or  for 
the  administration  of  justice  in  general.  In  the  first  place,  I  am 
absolutely  opposed  to  any  form  of  law  in  the  Constitution  or  out 
of  it  that  prescribes  a  different  rule  for  one  class  of  persons, 
whether  they  are  artificial  or  actual,  from  that  which  is  prescribed 
lor  another.  I  do  not  believe  in  putting  in  a  discrimination  of  that 
kind  in  the  Constitution.  For  that  reason  this  measure  is  abso- 
lutely defective.  On  the  other  hand,  I  believe  the  rights  of  the 
citizen  are  better  protected  by  a  carefully-selected  commission  than 
by  a  jury,  one  of  whom  may  be  purchased,  thus  leading  to  a  divided 
jury  or  a  greatly  reduced  verdict.  I  also  believe  that  this  amend- 
ment would  lead  to  the  obstruction  of  eminent  domain  proceedings, 
so  that  rival  competing  lines  would  be  delayed  from  being  built. 
I  have  heard  of  no  complaints  against  the  existing  law.  It  seems 
to  work  well,  and  I  have  acted  a  hundred  times  oftener  for  property 
owners  than  I  have  for  corporations  in  such  proceedings.  I,  there- 
fore, withdraw  my  request  to  be  excused  from  voting,  and  vote  aye. 

Mr.  Davis  —  Mr.  President,  I  desire  to  be  excused  from  voting, 
and  will  briefly  state  my  reasons.  Being  the  introducer,  sir,  of 
proposition  No.  230,  which,  in  a  large  degree,  is  similar  to  that  of 
Mr.  Marks  it  being  one  that  I  believe  covers  all  of  the  objections 
that  I  believe  have  been  made  by  the  various  members  of  this  Con- 
vention, having  drawn  that  proposition  and  introduced  it  into  this 
Convention  from  honest  motives  only,  I  believe  that  this  proposi- 
tion should  be  presented  in  place  of  that  of  Mr.  Marks's  and  be 


August  17.]  CONSTITUTIONAL  CONVENTION.  679 

accepted  by  this  Convention.  It  is  true  that  there  has  been  a  great 
deal  of  discussion  over  this  matter,  and  I  believe  honestly,  with  few 
exceptions.  When  Humpty  Dumpty  gets  upon  his  feet  and 
declares  that  this  is  scaly,  I  believe  he  casts  before  his  face  his  own 
reflection.  This  is  an  honest  measure,  and  I  believe  that  a  jury  is 
the  proper  tribunal  to  assess  the  damages  that  I  may  sustain  by 
reason  of  being  thrown  out  of  my  home  by  some  great  corporation, 
with  nothing  but  the  canopy  of  heaven  over  my  head.  I  believe 
it  is  right  in  principle  and  it  is  right  in  justice.  The  leader  of  the 
majority  of  this  House  has  very  well  and  honestly  stated  to  this 
Convention  in  forcible  terms  that  the  jury  was  the  great  safeguard 
between  the  people  and  the  courts.  It  has  been  charged  here  that 
this  limitation  against  the  liability  for  injury  causing  death,  that  that 
matter  has  been  before  the  Legislature  for  years  and  it  was  impos- 
sible to  get  the  Legislature  to  do  anything  about  it.  Why?  They 
say  that  the  Legislature  has  been  owned  by  corporations.  If  that 
is  true  in  that  case,  why  wouldn't  it  apply  in  this?  — 

The  President  —  The  gentleman's  time  is  up. 

Mr.  Davis  —  I  believe,  Mr.  President,  it  is  the  proper  way  to 
assess  the  damages.  I,  therefore,  withdraw  my  request  to  be 
excused,  and  vote  in  the  negative. 

Mr.  Peck  —  Mr.  President,  I  ask  to  be  excused  fronr  voting  and 
wilh-  briefly  state  as  the  reason,  because  I  think  a  measure  of  this 
importance,  which  has  been  discussed  to  the  extent  that  this 
measure  has  been  discussed,  and  while  it  is  in  the  process  of  perfec- 
tion by  its  friends,  should  not  be  killed  by  indirection.  I  wish  to 
vote  upon  this  measure  after  it  is  perfected  at  the  hands  of  its 
friends,  and,  therefore,  at  this  stage  of  the  proceedings  I  vote  no. 

Mr.  C.  A.  Fuller  —  Mr.  President,  I  voted  upon  this  proposition 
under  a  misapprehension.  It  is  my  intention  to  support  the  propo- 
sition of  Mr.  Marks.  I  voted  aye.  I  desire  to  change  my  vote 
to  no. 

The  President  —  The  motion  is  carried.     Ayes,  70;  noes,  67. 

The  vote  in  detail  is  as  follows: 

Ayes  —  Messrs.  Abbott,  Acker,  Ackerly,  Alvord,  Baker,  Barhite, 
Barnum,  Becker,  Brown,  E.  A.,  Cady,  Cassidy,  Chipp,  Jr.,  Church, 
Clark,  H.  A.,  Cookinham,  Countryman,  Crosby,  Deady,  Doty, 
Emmet,  Floyd,  Foote,  Francis,  Frank,  Augustus,  Fuller,  O.  A., 
Gilbert,  Goodelle,  Hamlin,  Hawley,  Hill,  Johnson,  J.,  Kimmey, 
Lewis,  C.  H.,  Lewis,  M.  E.,  Lincoln,  Lyon,  Manley,  Marshall,  May- 
bee,  McCurdy,  Mclntyre,  McLaughlin,  C.  B.,  McMillan,  Mereness, 
Moore,  Nichols,  O'Brien,  Osborn,  Parkhurst,  Parmenter,  Phipps, 


680  REVISED  RECORD.  [Friday, 

Pool,  Putnam,  Redman,  Root,  Schumaker,  Spencer,  Steele,  A.  B., 
Steele,  W.  H.,  Storm,  Sullivan,  T.  A.,  Tibbetts,  Towns,  Vedder, 
Wellington,  Whitmyer,  Wiggins,  President  —  68. 

Noes  —  Messrs.  Arnold,  Barrow,  Blake,  Bowers,  Burr,  Bush, 
Campbell,  Carter,  Cochran,  Coleman,  Danforth,  Davenport,  Davis, 
G.  A.,  Dean,  Deterling,  Deyo,  Dickey,  Durfee,  Fitzgerald,  Forbes, 
Frank,  Andrew,  Fuller,  C.  A.,  Galinger,  Gibney,  Giegerich,  Goeller, 
Green,  A.  H.,  Green,  J.  I.,  Griswold,  Hecker,  Hedges,  Hirschberg, 
Holcomb,  Holls,  Hotchkiss,  Hottenroth,  Jacobs,  Johnston,  Kinkel, 
Kurth,  Mantanye,  Marks,  McArthur,  McClure,  McDonough, 
McKinstry,  McLaughlin,  J.  W.,  Meyenborg,  Morton,  Mulqueen, 
Nicoll,  Nostrand,  Ohmeis,  Parker,  Pashley,  Peabody,  Peck,  Porter, 
Powell,  Pratt,  Roche,  Rogers,  Rowley,  Sandford,  Smith,  Spring- 
weiler,  Titus,  Tucker,  Turner,  Veeder,  Vogt,  Woodward  —  72. 

Mr.  Dean  —  Mr.  President,  I  desire  at  this  time  to  call  attention 
to  rule  6.  There  are  gentlemen  who  sit  in  this  Convention  time 
after  time,  during  a  roll-call  and  never  answer  to  their  names.  It 
seems  to  me  that  we  are  fairly  entitled  to  have  gentlemen  vote  upon 
this  question. 

The  President  —  Memorials  and  petitions  are  in  order.  A  memo- 
rial has  been  received  from  the  citizens  of  New  York  in  respect  to 
the  management  of  caucuses  and  is  referred  to  the  Suffrage  Com- 
mittee. Also,  a  civil  service  memorial  which  is  referred  to  the 
Select  Committee. 

Mr.  Becker  —  Mr.  President,  I  ask  unanimous  consent  at  this 
time  out  of  order,  as  I  am  compelled  to  be  away  this  morning,  to 
have  the  time  of  the  Committee  on  Legislative  Organization 
extended,  say  until  Friday  of  next  week,  to  make  its  report.  Mr. 
Brown,  the  author  of  the  bill  that  is  pending  before  the  committee, 
is  unavoidably  compelled  to  be  absent  from  the  Convention,  and 
Mr.  Bush  who  is  in  charge  of  the  interests  of  the  minority  of  the 
committee  cannot  be  here  until  Monday  night.  It  will  be  neces- 
sary to  go  over  the  proposed  bill  carefully  in  order  to  insure 
grammatical  accuracy,  etc.,  and  that  will  delay  it  a  day  or  two. 
I,  therefore,  ask  the  leave  of  the  Convention  that  the  time  of  this 
Committee  on  Legislative  Organization  to  report  be  extended  until 
a  week  from  to-day. 

Mr.  Osborn  —  Mr.  President,  I  had  intended  to  confer  with  the 
chairman  of  that  committee  on  the  subject  of  which  I  am  about  to 
speak,  and  I  hope  he 'will  not  consider  it  discourteous  in  me  to  speak 
to  the  Convention  about  it  before  mentioning  the  subject  to  him. 
There  is  before  the  Committee  on  Legislative  Organization  the 


August  17.]  CONSTITUTIONAL  CONVENTION.  68l 

subject  of  apportionment.  There  is  also  before  that  committee 
connected  with  the  subject  of  apportionment,  but  not  necessarily  a 
part  of  that  subject,  the  proposition  in  reference  to  the  terms  of 
Senators  and  Assemblymen  and  also  their  compensation.  Now,  it 
seems  to  me  that  that  committee  could  with  great  propriety  report 
to  this  body  in  advance  of  the  full  report  on  the  apportionment  of 
the  State,  its  views  upon  the  proposition  in  reference  to  the  terms 
of  Senators  and  Assemblymen  and  their  compensation,  and  I  would 
suggest,  therefore,  that  those  two  subjects  be  considered  upon  their 
merits  in  connection  with  the  report  which  I  understand  it  to  be 
submitted  from  the  Cities  Committee  in  reference  to  the  proposition 
for  separate  elections,  and  apart  from  any  feeling  which  be  aroused 
by  the  apportionment  question  proper.  I  would  suggest,  therefore, 
that  the  Convention  ask  the  Committee  on  Legislative  Organization 
to  report  at  the  earliest  possible  date  upon  the  subjects  of  the  terms 
of  Senators  and  Assemblymen  and  their  compensation. 

Mr.  Becker  —  Mr.  President,  I  will  say  in  reply  to  the  gentleman 
that  it  seems  to  me  that  this  is  a  matter  which  the  committee  must 
regulate  for  itself;  that  neither  he  nor  I  here  have  any  power.  I 
understand  it  to  be  the  wish  of  the  gentleman  that  that  matter 
should  lie  over  until  the  Convention  take  definite  action  on  the  sub- 
ject of  the  separations  of  State  and  city  elections.  I  would  be  very 
glad  to  consult  with  the  members  of  the  committee,  and  if  they 
desire  to  make  a  report  before  that  time  they  can  make  it.  Do  I 
understand  that  is  satisfactory  to  Mr.  Osborn? 

Mr.  Osborn  —  That  is  satisfactory. 

Mr.  Bowers  —  I  would  like  to  ask  the  chairman  of  the  Com- 
mittee on  Legislative  Organization  a  question.  Do  we  understand 
that  the  interview  published  in  the  papers  this  morning  with  the 
chairman  of  that  committee  is  authoritative? 

Mr.  Becker  —  The  chairman  replies  that  he  has  no  knowledge  of 
any  such  interview. 

The  President  put  the  question  on  the  motion  of  Mr.  Becker  to 
extend  the  time  within  which  the  Committee  on  Legislative  Organ- 
ization should  make  its  final  report  to  a  week  from  to-day,  and  it 
was  determined  in  the  affirmative. 

Mr.  Becker  —  Mr.  President,  on  account  of  a  long  standing  and 
pressing  engagement  made  prior  to  the  time  that  sessions  were 
fixed  for  Saturday  and  Monday,  I  desire  to  be  excused  until  Monday 
evening. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Becker  as  requested,  and  it  was  determined  in  the  affirmative. 


682  REVISED  RECORD.  [Friday, 

The  President  —  The  Chair  wishes  to  state  that  an  error  has  been 
made  in  the  count  of  the  vote  in  respect  to  Mr.  Marks's  amendment. 
The  true  result  is  that  the  motion  of  Mr.  Root  was  lost,  68  ayes  and 
72  noes.  (Applause.) 

What  is  the  further  pleasure  of  the  Convention  in  respect  to  Mr. 
Marks's  amendment? 

Mr.  Moore  —  Mr.  President,  I  move  that  it  be  referred  to  the 
Judiciary  Committee. 

Mr.  Bowers  —  That  is  a  burlesque  motion. 

Mr.  Moore  —  Mr.  President,  I  will  answer  that.  I  will  state  to 
Mr.  Bowers  that  I  do  not  make  burlesque  motions  whatever  they 
do  on  the  other  side  of  the  house. 

Mr.  Marks  —  Mr.  President,  I  move  to  amend  the  motion  that  it 
be  referred  to  the  Committee  of  the  Whole,  so  that  we  can  have 
full  discussion  again. 

Mr.  Root  —  Mr.  President,  I  rise  to  a  point  of  order.  Mr.  Marks's 
amendment  cannot  be  entertained,  because  it  is  a  proposition 
equivalent  to  the  proposition  which  was  decided  by  this  Convention 
at  its  session  last  evening-.  The  Convention  then  decided  that  the 
proposed  amendment  should  not  go  back  to  the  Committee  of  the 
W'hole.  The  amendment  of  Mr.  Marks  is  that  it  shall  go  back  to  the 
Committee  of  the  Whole,  and  the  rules  expressly  prohibit  the  enter- 
taining of  equivalent  propositions. 

The  President  —  The  Chair  is  of  the  opinion  that  the  Conven- 
tion has  a  right  to  deal  with  this  matter  as  they  see  fit,  notwith- 
standing that  they  have  disagreed  with  the  request  of  the  Committee 
of  the  Whole  for  leave  to  sit  again.  The  Convention  has  still  con- 
trol of  the  matter  and  may  recommit  to  the  Committee  of  the  Whole 
if  they  so  desire.  (Applause.) 

Mr.  Veeder  —  Mr.  President,  I  was  going  to  ask  for  recogni- 
tion, simply  for  the  purpose  of  moving  a  reconsideration,  if  the 
ruling  of  the  Chair  had  been  different,  but  I  am  perfectly  satisfied 
with  the  ruling. 

The  President  —  The  question  is  on  the  amendment  of  Mr.  Marks 
to  refer  his  amendment  to  the  Committee  of  the  Whole. 

Mr.  Veeder  —  Mr.  President,  is  that  motion  debatable? 

The  President  —  It  is. 

Mr.  Veeder  —  Mr.  President,  now  I  submit  that  that  is  the  better 
course  to  pursue.  If  the  matter  is  referred  to  the  Judiciary  Com- 
mittee and  subsequently  reported  by  the  Judiciary  Committee, 
unfortunately  the  Convention  is  not  of  opinion  that  the  Judiciary 


August  17.]  CONSTITUTIONAL  CONVENTION.  683 

Committee  is  always  right,  and  consequently  the  same  discussion 
will  occur,  and  then  whether  they  make  a  favorable  or  adverse 
report,  it  will  then  have  to  go  to  the  Committee  of  the  Whole  and 
on  general  orders.  The  house  is  now  fully  informed  on  the  subject 
under  discussion,  and  why  refer  it  to  the  committee  and  allow  it 
to  remain  there,  and  then  when  the  report  comes  in  take  up  the 
whole  subject  anew.  I  submit  it  is,  therefore,  better,  if  it  is  to  be 
further  considered,  that  it  should  go  to  the  Committee  of  the  Whole 
and  be  disposed  of. 

Mr.  Dickey  —  Mr.  President,  if  this  motion  to  send  it  back  to  the 
Committee  of  the  Whole  is  carried,  it  will  permit  the  substitution  of 
Mr.  Davis's  amendment. 

Mr.  Vedder  —  Mr.  President,  I  could  not  exactly  hear  the  point 
of  order  made  by  Mr.  Root,  and  I  could  not  quite  catch  the  ruling  of 
the  Chair.  I  wish  to  make  this  point  of  order  that  the  motion  is 
not  in  order  in  the  condition  that  this  matter  is  now  in.  The  Con- 
vention yesterday  refused  to  confirm  the  report  of  the  Committee  of 
the  Whole. 

Mr.  Cochran  —  Mr.  President,  I  rise  to  a  point  of  order.  The 
Chair  has  decided  this  question.  The  gentleman  can  appeal  from 
that,  but  I  do  not  see  any  necessity  for  arguing  this  matter. 

Mr.  Vedder  —  Mr.  President,  there  was  so  much  disorder  in  this 
part  of  the  House  that  I  did  not  hear  Mr.  Root's  point  of  order  nor 
the  decision  of  the  Chair.  But  supposing  that  the  ruling  of  the 
Chair  is  correct  and  a  proposition  is  on  its  third  reading,  and  was 
rejected,  could  a  motion  be  made  that  that  bill  be  read  again  without 
first  reconsidering  the  motion  by  which  the  proposition  was  lost? 
If  when  a  motion  is  defeated  a  similar  motion  can  be  made  imme- 
diately, there  is  no  end  to  motions  which  can  be  made,  and  there 
must  be  an  end  at  some  time.  The  action  of  the  Convention  yester- 
day that  the  Committee  of  the  Whole  should  not  sit  upon  this 
proposition  again  is  the  order  to-day  and  cannot  be  changed  unless 
by  moving  a  reconsideration  of  that  vote.  You  cannot  keep  on 
putting  motions  that  are  defeated.  You  cannot  put  them  over  and 
over  again.  The  only  orderly  and  logical  way  to  proceed  is  to  move 
a  reconsideration  of  the  vote. 

Mr.  Veeder  —  To  save  all  discussion  on  this  subject,  I  move  a 
reconsideration  of  the  vote,  refusing  to  let  the  Committee  of  the 
Whole  sit  again  on  the  proposition.  That  is  the  motion  I  desired  to 
make  in  the  beginning.  That  will  save  all  question  and  save  us 
from  any  error. 

Mr.  Moore  —  Mr.  President,  I  rise  to  the  point  of  order  that  the 


684  REVISED  RECORD.  [Friday, 

mover  of  the  resolution  did  not  vote  with  the  majority  upon  that 
question. 

Mr.  McClure  —  Mr.  President,  I  make  the  point  of  order  that 
the  Chair  has  already  decided  that  the  Convention  could  send  this 
amendment  to  the  Committee  of  the  Whole,  and  that  the  motion  of 
Mr.  Veeder  is  out  of  order. 

The  President  —  The  Chair  decides  that  Mr.  Vedder's  point  of 
order  is  not  well  taken,  and  that  Mr.  Veeder's  motion  is  out  of  order. 

Mr.  Veeder  —  That  you,  Mr.  President,  I  am  satisfied. 

Mr.  Bowers  —  Mr.  President,  I  move  to  lay  the  whole  matter 
upon  the  table. 

The  President  put  the  question  on  the  motion  of  Mr.  Bowers  to 
lay  the  whole  matter  upon  the  table,  and  it  was  determined  in  the 
negative,  ayes,  58;  noes,  66. 

The  President  —  The  question  is  on  Mr.  Marks's  amendment  that 
his  amendment  be  referred  to  the  Committee  of  the  Whole.  Mr. 
Moore  moved  to  commit  it  to  the  Judiciary  Committee,  a  motion 
perfectly  in  order.  Mr.  Marks  moves  to  amend  that  motion  by 
substituting  the  Committee  of  the  Whole,  which  the  Chair  holds  to 
be  entirely  in  order. 

The  amendment  of  Mr.  Marks  was  adopted. 

The  President  then  put  the  question  on  the  motion  to  recommit 
the  matter  to  the  Committee  of  the  Whole,  and  it  was  determined 
in  the  affirmative. 

Mr.  Roche  —  Mr.  President,  I  ask  leave  of  absence  from  now 
until  Tuesday  morning,  and  I  will  state  that  I  will  try  to  be  here 
on  the  Monday  evening  session,  and  as  there  are  several  proposi- 
tions of  mine  which  are  on  the  calendar,  I  will  move  these 
propositions  on  Tuesday,  or  the  earliest  hour  at  which  they  can  be 
reached. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Roche,  and  it  was  determined  in  the  affirmative. 

Mr.  Augustus  Frank  —  Mr.  President,  I  ask  to  be  excused  from 
attendance  until  next  Monday  evening. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Frank,  and  it  was  determined  in  the  affirmative. 

Mr.  Towns  —  Mr.  President,  I  ask  to  be  excused  to-morrow  and 
Monday,  in  order  to  have  an  operation  performed  on  my  arm. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Towns,  and  it  was  determined  in  the  affirmative. 


August  17.]  CONSTITUTIONAL  CONVENTION.  685 

Mr.  Danforth  —  Mr.  President,  by  reason  of  professional  engage- 
ments, a  reference,  made  for  to-morrow  before  the  rule  fixing  our 
present  sessions  was  proposed,  I  ask  leave  of  absence  for  to-morrow. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Danforth,  and  it  was  determined  in  the  affirmative. 

Mr.  Manley  —  Mr.  President,  I  ask  leave  to  be  excused  for 
to-morrow  and  Monday. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Manley,  and  it  was  determined  in  the  affirmative. 

Mr.  Gilbert  —  Mr.  President,  for  reasons  which  are  of  a  purely 
public  character,  I  wish  to  be  excused  until  Tuesday. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Gilbert,  and  it  was  determined  in  the  affirmative. 

Mr.  Mulqueen  —  Mr.  President,  in  view  of  the  good  work  that 
we  have  done  this  week  in  passing  nearly  five  general  orders  yes- 
terday and  sitting  three  nights  and  three  sessions  a  day  yesterday 
and  to-day,  I  would  ask  unanimous  consent  that  we  do  not  have  a 
session  on  Saturday.  I  believe,  Mr.  President,  that  we  will  hardly 
have  a  quorum  on  Saturday,  in  view  of  the  excuses  that  have 
already  been  granted,  and  it  seems  hardly  fair  to  keep  men  here 
when  the  probability  is  that  we  will  not  be  able  to  do  any  business. 
I  am  in  favor,  Mr.  President,  of  coming  here  at  nine  o'clock  in  the 
morning  and  sitting  all  day  and  all  night  in  order  to  complete  the 
business,  but  it  does  seem  hard  on  us  that  we  cannot  go  home  to 
our  families  once  a  week  at  least.  It,  therefore,  seems  proper  that 
the  Committee  on  Rules  give  us  Saturdays  to  attend  to  our  private 
affairs. 

The  President  —  Do  you  make  a  motion  that  we  do  not  sit 
Saturday? 
Mr.  Mulqueen  —  I  do. 

Mr.  Pratt  —  I  move  to  amend  that  no  session  be  held  on  Saturday 
afternoon. 
The  President  —  Does  Mr.  Mulqueen  accept  that? 

Mr.  Mulqueen — No,  sir;  I  believe  that  if  we  are  given  Saturday 
that  the  members  of  this  Convention  would  be  willing  to  come  here 
and  sit  all  night  on  one  of  the  days  next  week  in  order  to  make  up 
for  the  time  lost  on  Saturday. 

Mr.  Hawley  —  Mr.  President,  I  make  the  point  of  order  that  this 
motion  must  necessarily  go  to  the  Committee  on  Rules. 
The  President  —  The  Chair  is  of  the  opinion  that  under  the  pecu- 


686  REVISED  RECORD.  [Friday, 

liar  order  which  was  passed,  the  point  of  order  is  not  well  taken, 
because  the  resolution  reads,  "unless  otherwise  specially  ordered 
by  the  Convention,"  if  I  am  not  mistaken  in  that. 

Mr.  Acker  —  Mr.  President,  it  seems  to  me  that  if  our  experi- 
ences in  the  past  have  taught  us  anything,  a  session  for  to-morrow 
morning  will  amount  to  nothing.  If  we  are  to  stay  here  and 
do  any  business  to-morrow,  we  must  have  more  than  one  session. 
If  we  must  be  excused  to  attend  our  business  and  attend  the  horse 
races,  well,  then,  let  us  say  so,  and  not  keep  a  majority  of  a  quorum 
here  until  midnight  to-day  and  then  wake  up  to-morrow  and  find 
there  is  nobody  here.  It  is  our  duty  to  go  on  with  our  work  or 
else  stop  to-night.  Either  work  or  not  work.  To-morrow  morn- 
ing if  we  have  only  one  session  we  will  accomplish  nothing,  as  the 
members  will  all  leave  for  their  homes  to-night.  If  you  want  to 
do  business  you  should  sit  here  two  sessions  to-morrow  or  else 
conclude  it  to-night.  Let  us  have  no  play-days,  no  half-holidays. 
Let  us  do  something  or  nothing. 

Mr.  Hill  —  Mr.  President,  it  seems  to  me  this  matter  has  been 
thoroughly  considered  by  this  Convention,  and  we  ought  to  sit 
Saturday  morning.  If  we  decide  not  to  sit  to-morrow  morning  we 
will  find  this  evening's  session  will  amount  to  nothing.  I  am  in 
favor  of  sitting  to-morrow  morning  and  to-morrow  afternoon.  It 
seems  to  me  that  we  can  well  afford  this  week  to  sit  Saturday,  and 
then  if  we  find  it  not  successful,  next  week  we  can  adjourn  over 
Saturday. 

Vice-President  W.  H.  Steele  in  the  chair. 

Mr.  Durfee  —  Mr.  President,  there  are  over  forty  in  number  on 
the  calendar  of  general  orders.  Reports  of  committees  that  are 
to  be  handed  in  within  a  day  or  two  will  largely  increase  that  num- 
ber. By  the  utmost  diligence  yesterday  we  succeeded  in  dispatch- 
ing four  of  the  proposed  amendments  which  were  least  likely  to 
provoke  extended  debate,  although  the  last  one,  that  which  we 
have  been  concerned  about  this  morning,  as  it  turned  out,  did  pro- 
voke debate,  but  the  larger  proportion  of  the  amendments,  which 
are  sure  to  provoke  extended  discussion,  are  still  before  us.  Under 
these  circumstances,  I  submit  that  we  ought  to  proceed  in  accord- 
ance with  the  order  that  we  have  already  made  and  with 
diligence  and  attention  to  the  duties  that  we  are  here  to  dis- 
charge. Another  week,  or  two  weeks  hence,  if  the  business  shall 
then  be  so  far  progressed  that  we  may  safely  dispense  with  Satur- 
day sessions,  I  -shall  be  most  happy  to  join  in  that  action;  but  for 


August  17.]  CONSTITUTIONAL  CONVENTION.  687 

the  present  it  certainly  does  appear  to  me  that  the  motions  which 
are  now  pending  ought  not  to  prevail. 

Mr.  Moore  —  Mr.  President,  I  certainly  hope  that  this  Conven- 
tion will  remain  in  the  same  mind  one  whole  week.  That  is  what 

i 

I  hope  about  it.  I  have  personally  always  been  in  favor  of  this 
Convention  sitting  about  as  the  Legislature  does;  but  that  is  not 
to  the  point  now.  I  certainly  hope  the  resolution  and  the  amend- 
ment will  both  be  defeated,  and  that  we  will  continue  to  carry  out 
our  original  arrangement  by  sitting  all  week. 

Mr.  Choate  —  Day  before  yesterday  this  Convention  voted  thai! 
it  was  not  yet  time  to  trust  women  with  the  conduct  of  public 
affairs.  If  this  amendment  of  Mr.  Mulqueen's  passes,  I,  for  one, 
shall  be  satisfied  that  men  are  not  fit  to  be  trusted  with  the  conduct 
of  public  affairs.  (Applause.)  What  are  we  here  for?  For  work 
or  for  play?  The  situation  has  not  changed  one  particle  since,  a 
week  ago,  we  adopted  the  resolution  that  the  public  service  neces- 
sarily required  us  to  hold  sessions  every  day,  besides  the  evening 
session.  Talk  about  work  accomplished  this  week!  Why,  the 
great  work  of  this  Convention  still  remains  to  be  done.  Think  of 
it,  only  three  weeks  more  for  the  consideration  of  these  questions. 
You  have  only  broken  the  edge  of  the  work  that  is  laid  out  for  this 
Convention  to  do.  Why,  gentlemen,  consider  for  a  moment.  The 
judiciary  article  alone;  how  much  time  will  that  consume  in  a  body 
in  which  there  are  one  hundred  and  thirty  lawyers,  each  one  having 
his  own  view  on  each  section  of  that  article?  The  report  of  the 
Committee  on  Cities,  involving  the  interests,  the  feelings  and  the 
prejudice  of  almost  every  section  of  the  State;  the  report  of  the 
Committee  on  Education,  which,  in  itself,  as  I  understand,  has 
involved  in  the  heart  of  that  committee  very  wide  controversy,  and 
necessarily  will  in  the  meeting  of  this  Convention;  the  report  of  the 
Committee  on  Charities,  of  a  similar  complexity,  although  involving 
only  one  question,  if  you  please,  yet  one  which  divides  the  com- 
munity very  largely.  And  then,  above  all,  the  question  of  appor- 
tionment. Mr.  Osborn  has  well  said  that  that  is  a  question  which 
may  involve  not  only  matters  of  principle,  but  matters  of  feeling, 
and  we  may  expect  long  and  close  discussion  upon  it.  Now,  let 
us  show  ourselves  men.  Do  not  let  us  throw  away  an  opportunity 
for  work.  I  regret  very  much  that  so  many  gentlemen  have  asked 
to  be  excused,  and  have  received  leave  of  absence  for  to-morrow. 
For  one,  I  believe  that  any  member  of  this  Convention  who  has 
business  to  attend  to  elsewhere  ought  not  to  be  excused.  Let  him 
go  at  his  own  expense,  and  attend  to  his  business,  and  lose  his  per 
diem,  and  make  it  up  out  of  the  business  that  he  is  to  attend  to. 


688  REVISED  RECORD.  [Friday, 

Now,  gentlemen,  it  will  be  a  great  mistake  to  pass  either  Mr. 
Mulqueen's  resolution  or  the  amendment,  and  for  one,  I  hope  the 
Convention  will  take  care  of  its  own  honor  and  its  own  reputation 
and  not  do  so  foolish  and  boyish  a  thing  as  to  change  its  course  on 
this  matter. 

Mr.  Dean  —  After  passing  by  an  almost,  and,  I  think,  an  entire, 
unanimous  vote  a  resolution  to  sit  here  continuously  six  days  in 
the  week  and  three  times  a  day,  it  seems  to  me  that  it  is  the  height 
of  absurdity,  absolutely  ridiculous,  for  this  Convention,  at  this 
time,  to  consider  even  the  proposition  of  adjourning  over  to-mor- 
row. I,  therefore,  move  that  the  resolution  lie  upon  the  table. 

Mr.  Acker  —  I  move  the  previous  question. 

Mr.  Dean  —  I  will  withdraw  my  motion  for  the  purpose  of  giving 
place  to  the  previous  question. 

Mr.  Mulqueen  —  I  would  ask  the  gentleman  to  withdraw  his 
motion  for  just  a  moment. 

The  President  pro  tern. —  Does  the  gentleman  insist  upon  the  pre- 
vious question? 

Mr.  Acker  —  Yes,  sir;  I  insist  upon  it. 

Mr.  Mulqueen  —  Mr.  President,  I  want  to  say  that  I  yield  to  no 
man  — 

The  President  pro  tern. —  The  Chair  would  remind  the  gentleman 
that  the  previous  question  precludes  debate. 

Mr.  Mulqueen  —  Oh,  I  understood  that  it  had  been  withdrawn. 
The  President  pro  tern. —  It  was  not  withdrawn. 

The  President  pro  tern,  then  put  the  question,  shall  the  previous 
question  be  adopted,  which  was  determined  in  the  affirmative. 

The  President  pro  tern,  put  the  question  on  the  amendment 
offered  by  Mr.  Pratt,  that  no  session  shall  be  held  on  Saturday 
afternoon,  and  it  was  determined  in  the  negative. 

The  President  pro  tern,  then  put  the  question  on  the  original 
motion  as  offered  by  Mr.  Mulqueen,  that  there  shall  be  no  session 
to-morrow  (Saturday),  and  it  was  determined  in  the  negative. 

Mr.  Gilbert  asked  unanimous  consent  to  introduce  a  proposed 
constitutional  amendment. 

Mr.  Veeder  —  I  would  like  to  have  it  read  for  information  before 
it  is  received. 

The  President  pro  tern. —  The  Chair  knows  of  no  way  in  which 
it  can  be  read  before  it  is  received. 

Mr.  Veeder  —  Then  I  object.     I  ask  to  have  it  read  for  informa- 


August  17.]  CONSTITUTIONAL  CONVENTION.  689 

tion.  I  think  that  is  entirely  proper.  Then  we  know  whether  or 
not  we  want  to  object  or  not.  I  do  not  want  to  object  if  I  think 
it  is  all  right.  If  I  think  it  is  not  all  right  I  want  to  object. 

Mr.  Gilbert  —  It  seems  to  me  that  that  is  very  proper.  The  only 
object  of  the  proposed  amendment  is  to  change  the  day  on  which 
the  Legislature  shall  assemble  from  Tuesday  until  Wednesday. 
That  is  the  sole  purpose  of  it,  and  that  for  the  purpose  of  rendering 
it  unnecessary  for  the  members  to  come  here  Sunday  to  prepare  for 
caucus.  It  is  only  to  change  the  day  of  the  week  from  Tuesday  to 
.Wednesday. 

Mr.  Veeder  —  I  withdraw  my  objection. 

Mr.  Gilbert  —  I  would  ask  that  it  go  to  the  Committee  on  Legis- 
lative Powers. 

The  President  pro  iem. —  It  requires  unanimous  consent  for  the 
reference  asked  by  Mr.  Gilbert.  If  there  is  no  objection  it  is  so 
referred. 

O-  385. —  By  Mr.  Gilbert,  proposed  constitutional  amendment, 
to  amend  section  6  of  article  10,  in  relation  to  the  time  when  the 
Legislature  shall  assemble. 

Referred  to  Committee  on  Legislative  Powers. 

The  President  pro  tern,  announced  that  notices,  motions  and 
resolutions  were  in  order. 

Mr.  Vedder  —  Since  notices  are  in  order,  and  the  amendment  has 
just  been  referred  to  the  Committee  on  Legislative  Powers,  I  want  to 
give  notice  now  that  there  will  be  a  meeting  of  that  committee  to 
take  up  this  matter  at  half-past  two  to-day. 

Mr.  Moore  —  I  desire  to  call  the  attention  of  the  Convention  to 
the  fact  that  printed  Document  No.  15,  in  which  are  contained  the 
rules  of  this  Convention,  and  which  was  ordered  some  three  or  four 
weeks  ago  to  be  reprinted  in  corrected  form,  with  all  the  new  rules 
in  it,  has  not  yet  been  produced  or  put  upon  our  files.  I,  therefore, 
move,  Mr.  President,  that  the  Printing  Committee  be  instructed  to 
produce  this  document,  No.  15,  properly  printed,  at  the  session  of 
the  Convention  next  Monday  morning. 

The  President  pro  tern. —  The  Chair  will  inform  the  gentleman 
that  that  matter  is  now  in  the  hands  of  the  printer  and  is  receiving 
all  the  expedition  that  can  be  given  to  it.  Is  that  satisfactory  to 
the  gentleman? 

Mr.  Moore  —  Well,  Mr.  President,  it  is  not  satisfactory  to  me  as 
a  member  of  this  Convention  to  come  here  every  morning  and  have 
44 


690  REVISED  RECORD.  [Friday, 

to  look  through  a  mass  of  debates  and  documents  to  try  and  find 
out  what  is  or  what  is  not  a  rule.  These  rules  have  been  amended 
from  time  to  time,  and  the  only  possible  way  that  we  can  ascertain 
them  is  either  to  trust  the  memory  or  the  judgment  or  the  obiter 
dictum  of  the  presiding  officer  or  of  some  other  member  of  this  Con- 
vention. It  seems  to  me  that  this  Convention  ought  to  have  the 
power  to  compel  the  finishing  of  at  least  one  document  by  the 
people  who  have  this  printing  contract  in  charge,  in  time  for  us 
to  use  it  before  it  is  time  for  us  to  adjourn. 

The  President  pro  tern. —  Will  the  gentleman  repeat  his  motion? 

Mr.  Moore  —  My  motion  is  that  the  Printing  Committee  be 
instructed  to  produce  this  document,  No.  15,  ready  for  use  by  this 
Convention,  and  upon  the  files  of  members,  next  Monday  morning 
at  the  opening  of  the  session  of  this  Convention.  Personally,  and 
I  believe  I  speak  for  the  members  of  this  Convention,  too,  I  think 
they  are  tired  of  this  dilly-dallying  in  printing  matters  which  ought 
to  come  up  for  our  use  here.  I  move  that,  Mr.  President,  right  or 
wrong. 

The  President  pro  tern,  then  put  the  question  on  the  motion  of 
Mr.  Moore,  and  it  was  determined  in  the  affirmative. 

Mr.  Roche  —  I  was  going  to  move  an  amendment  to  that.  The 
Chair  put  the  question  so  quickly  that  I  could  not  do  it.  I  now 
make  a  similar  motion  as  to  the  debates  of  the  Convention;  that  the 
files  be  produced  here  next  Monday  morning  up  to  date.  I  think 
it  is  an  imposition  upon  this  Convention  the  way  in  which  the  print- 
ing of  its  documents  and  proceedings  is  done,  or  rather  is  not  done, 
and  it  is  well  worthy  of  inquiry  how  long  and  how  frequently  the 
answer  is  to  be  made  here,  when  we  ask  in  regard  to  the  documents 
and  printing  of  this  Convention,  that  they  are  being  done  with  all 
possible  expedition.  I  think  this  Convention  should  take  some 
steps  to  expedite  the  expedition,  whether  they  are  financial  or  other- 
wise. It  is  utterly  discreditable,  the  way  in  which  these  documents 
are  kept  back  from  the  Convention,  and  the  report  of  its  proceed- 
ings. Here  is  the  file  relative  to  debates,  and  we  have  nothing  upon 
this  file  since  last  Friday  morning.  There  seems  to  be  no  reason 
for  that;  or,  if  there  is,  why  the  Convention  ought  to  be  made 
acquainted  with  the  fact. 

The  President  pro  tern. —  If  Mr.  Roche  will  listen  to  the  Chair  for 
a  moment-1— the  Chair  is  informed  that  these  records  are  being 
handed  around  to  the  members  at  their  request,  in  order  to  be  cor- 
rected before  they  are  placed  upon  the  files. 

Mr.  Roche  —  I  do  not  think  that  is  any  answer,  or  that  it  is  any 


August  17.]  CONSTITUTIONAL  CONVENTION.  691 

excuse.  Here  is  a  whole  week  of  the  proceedings  of  this  Conven- 
tion, and  without  desiring  whatever  to  dispute  one  word  of  what 
the  Chair  states,  it  seems  to  me  that  it  is  not  possible  that  the  pro- 
ceedings of  an  entire  week  of  this  Convention  are  being  handed 
around  among  the  individual  members  for  the  purpose  of  correcting 
them;  and,  if  it  is  true,  then  it  ought  to  be  stopped;  because  it  is 
not  the  individual  members  who  alone  are  interested  in  the  proceed- 
ings and  in  the  debates.  All  of  us  have  a  right  to  have  these  pro- 
ceedings before  us  at  the  earliest  day  possible,  because  subjects  fre- 
quently come  up  here  as  a  matter  of  debate  in  connection  with  which 
we  desire  to  refer  to  what  has  occurred  previously  or  to  what  some 
member  may  have  said  upon  the  floor;  and  it  is  utterly  impossible 
that  we  should  do  so  if  these  things  are  to  be  held  back  here  a  whole 
week,  or  if  they  are  to  be  held  back  at  the  good  pleasure  of  indi- 
vidual members  in  order  that  they  may  reconstruct  their  speeches. 

Mr.  Roche  then  restated  his  motion: 

R.  175. —  Resolved,  That  the  Printing  Committee  cause  also  to 
be  produced  and  placed  upon  the  files  of  the  members  the  Journal 
of  this  Convention  and  the  debates  of  the  Convention  up  to  this 
date,  next  Monday  morning. 

Mr.  Alvord  —  Mr.  President,  in  the  Convention  of  1867-8,  we  had 
a  rule  that  the  matters  which  the  preceding  day  brought  forward, 
should,  upon  the  day  then  present,  be  upon  our  files.  We  very 
seldom,  if  ever,  failed  to  have  the  proceedings  of  each  day,  the  next 
succeeding  morning,  upon  the  files  of  the  Convention.  I  can  see 
no  reason  why  we  could  not  hold  the  printers  at  least  to  their  con- 
tract and  agreement  and  have  these  matters  each  and  every  day  up 
to  the  end  of  the  preceding  day.  I  think  that  the  remarks  made  by 
the  gentleman  from  Rensselaer  are  entitled  to  great  weight  and  con- 
sideration, and  his  resolution  ought  to  be  the  unanimous  voice  of 
this  Convention. 

Mr.  Hamlin  —  I  agree  in  substance  with  all  that  the  gentleman 
from  Rensselaer  has  said  in  regard  to  the  printing  of  this  Conven- 
tion, but,  sir,  I  see  no  object  in  referring  this  matter  to  the  Printing 
Committee.  There  have  been  resolutions  and  resolutions  passed 
by  this  Convention  requiring  this  printing  to  be  done,  but  this  com- 
mittee has  no  authority  over  The  Argus  Company.  The  situation 
of  this  Convention  is  very  different  from  that  of  the  Convention 
which  has  been  referred  to  here  by  the  gentleman  from  Onondaga. 
It  had  some  power  over  its  printing,  but  this  Convention  is 
bound  hand  and  foot;  and,  while  your  Printing  Committee  is  will- 
ing to  do  anything  within  its  power,  there  is  no  object,  as  it  seems  to 


692  REVISED  RECORD.  [Friday, 

me,  in  referring  this  resolution  to  that  committee.  It  is  rather  a 
question  between  the  Comptroller  and  The  Argus  Company,  and 
I  submit  that  the  resolutions  passed  by  this  body  in  regard  to  its 
printing  should  be  directed  to  the  officers  of  this  State  who  have 
some  control  over  the  contractors. 

Mr.  Roche  —  If  it  is  the  Compiler  who  has  charge  of  the  work, 
then  I  will  change  my  motion  and  direct  it  to  the  Compiler,  and  not 
to  the  Printing  Committee,  if  he  is  the  proper  person. 

Mr.  Cochran  —  Mr.  President,  it  seems  to  me,  sir,  that  this  should 
go  to  the  Printing  Committee,  in  order  that  the  cause  of  the  delay 
may  be  ascertained.  It  may  be,  sir,  that  the  delay  is  not  due  at  all 
to  the  printers,  but,  possibly,  to  the  insufficient  force  of  stenogra- 
phers we  have  in  this  Convention.  We  should  remember  that  we 
are  now  having  almost  continuous  sessions.  It  may  be  that  the 
stenographers  are  unable  to  transcribe  their  notes  in  time  to  submit 
them  to  the  printer.  I  do  not  think  we  should  blame  anyone  until 
we  know  where  the  blame  is  properly  due.  I  think  it  should  go  to 
the  Printing  Committee  so  it  could  be  ascertained. 

The  President  pro  tern. —  Do  you  make  that  as  an  amendment  to 
Mr.  Roche's  motion? 

Mr.  Cochran  —  Well,  I  did  not  understand  that  he  changed  his 
motion. 

The  President  pro  tern. —  Yes,  Mr.  Roche  has  changed  his  motion 
so  as  to  refer  the  matter  to  the  Compiler. 

Mr.  Roche  —  Only,  Mr.  President,  in  the  event  that  the  Compiler 
is  the  proper  person.  If  it  belongs  to  the  Printing  Committee  I  am 
entirely  willing  to  have  the  motion  remain  as  it  was  introduced  at 
first. 

The  President  pro  tern. —  That  is  a  difficult  matter  to  decide  here. 

Mr.  Roche  —  Then  leave  it  to  the  Printing  Committee. 

Mr.  McClure  —  Mr.  President,  we  have  been  here  from  ten 
o'clock  until  half-past  eleven,  and  have  practically  done  nothing,  in 
the  face  of  the  rule  that  provides  that  we  shall  sit  and  continue  to 
sit  on  Saturdays  and  do  some  business.  Now,  this  is  important, 
but  it  is  not  important  enough,  this  printing  and  Compiler  question, 
to  waste  a  whole  day  upon  it;  and  for  the  first  time  in  the  proceed- 
ings of  this  Convention  I  move  the  previous  question. 

The  President  pro  tern,  put  the  question  on  the  adoption  of  the 
previous  question,  and  it  was  carried  in  the  affirmative. 

The  President  pro  tern,  put  the  question  on  the  motion  of  Mr. 
Roche,  and  it  was  determined  in  the  affirmative. 


August  17.]  CONSTITUTIONAL  CONVENTION.  693 

Mr.  Barrow  —  Mr.  President,  I  move  that  the  regular  order  of 
business  be  now  suspended,  and  that  the  Convention  go  into  the 
consideration  of  general  orders. 

Mr.  Cady  —  Mr.  President,  I  hope  that  that  motion  will  not  pre- 
vail at  this  time.  To-morrow  will  not  be  a  day,  as  I  understand  it, 
on  which  the  regular  order  will  necessarily  be  pursued.  There  are 
reports  of  committees  to  be  made  at  this  time,  at  least  one  commit- 
tee that  I  know  of,  of  which  I  am  chairman,  and  I  am  very  desirous 
of  having  that  matter  brought  before  the  Convention  and  the  com- 
mittee relieved  of  it. 

Mr.  Barrow  —  I  withdraw  my  motion. 

The  President  pro  tern. —  Notices,  motions  and  resolutions  are  -in 
order. 

Mr.  Root  —  Mr.  President,  I  move  to  amend  rule  29,  by  striking 
out  the  words  at  the  end  of  the  rule  as  follows :  "  To  bring  up  the 
subject  immediately  before  the  Convention,"  and  by  substituting  in 
their  place  the  words:  "To  reject  the  proposed  constitutional 
amendment." 

The  President  pro  tern. —  It  is  referred  to  the  Committee  on  Rules, 
if  there  are  no  objections. 

Mr.  Root  —  Mr.  President,  I  move  to  amend  rule  7,  by  inserting 
after  the  word  "request"  the  words:  "Any  member  may  explain 
his  vote  for  not  exceeding  three  minutes." 

The  President  pro  tern. —  Referred  to  the  Committee  on  Rules. 

Mr.  Davis  —  Mr.  President,  I  desire  to  be  excused  from  attend- 
ance next  Monday  and  Tuesday. 

Mr.  Alvord  —  Mr.  President,  I  desire  to  say  that  in  my  oppo- 
sition to  these  excuses,  I  am  simply  carrying  out  the  provisions 
which  have  been  established  by  this  Convention,  that  we  shall  meet 
here  upon  certain  days  and  at  certain  hours.  The  way  in  which 
we  are  going  on  will  simply  give  us  absolutely  less  than  a  quorum 
in  attendance.  We  have  already  excused  fifty-three  men  yesterday 
and  to-day  from  attendance  upon  their  duties  to-morrow.  I  trust, 
therefore,  sir,  that  the  time  has  come  when  a  mere  excuse  simply 
for  business  or  pleasurable  purposes  shall  be  withheld  by  a  vote  of 
this  Convention.  If  a  man,  in  consequence  of  illness  in  his  own 
person  or  his  family,  requests  to  be  excused,  I  will  cheerfully  vote 
for  it,  but  as  for  excusing  men  upon  the  other  pretenses,  I  shall  now, 
as  I  have  undertaken  in  the  past  —  and  I  hope  and  trust  with  a 
sufficient  majority  behind  me  —  decline  to  give  any  further  excuses. 
If  a  man  is  obliged  to  go  away  on  business,  as  has  been  well  said 


694  REVISED  RECORD.  [Friday, 

by  our  presiding  officer,  I  have  this  much  to  say,  that  he  probably 
goes  with  the  anticipation  and  expectation  of  putting  his  money 
into  his  pocket  by  the  operation.  Do  not  let  us,  therefore,  upon 
false  pretenses,  permit  him  to  put  the  money  of  the  State  also  in  his 
pocket. 

Mr.  Bowers  —  Mr.  President,  I  desire  to  say,  in  answer  to  the 
suggestion  of  the  gentleman  from  Onondaga,  that  I  do  not  believe 
that  any  member  of  this  Convention  asks  to  be  excused  for  the  pur- 
pose of  saving  his  ten  dollars.  We  make  the  request  to  be  excused, 
personally,  I  have  made  it,  from  attendance  at  this  Convention,  sim- 
ply that  -it  should  be  known  whether  a  delegate  intended  to  be  pres- 
ent or  not.  Many  of  us  have  asked  for  very  few  excuses,  and  none 
of  us  has  in  mind  the  desire  to  save  the  ten  dollars  to  which  the 
gentleman  has  referred,  and  to  which  the  President  referred.  It 
is  a  matter  of  courtesy  and  of  propriety,  and  I  have  maintained  it 
from  the  start,  to  ask  to  be  excused,  that  the  Convention  might 
know  how  it  stood  in  the  way  of  having  a  quorum  present.  If  mem- 
bers should  go  away  without  any  notice,  you  would  be  on  Satur- 
days, as  you  were  last  Friday  after  you  adopted  the  rule,  without 
any  quorum  to  do  business.  I  do  not  think  such  reflections  should 
be  made  upon  the  members.  We  are  quite  ready  to  come  here, 
quite  ready  to  make  sacrifices.  The  talk  of  ten  dollars  a  day  is 
mere  nonsense.  Now,  as  to  giving  these  excuses,  we  stand  in  this 
position.  This  rule,  it  is  true,  was  adopted  last  Friday,  but  we  have 
been  hitherto  proceeding  under  a  rule  by  which  we  did  not  sit  Sat- 
urdays and  Mondays.  Large  numbers  of  delegates  have  made 
engagements  in  advance  for  those  days  which  they  could  not  cancel, 
and  they  are  compelled  now,  under  these  peculiar  circumstances, 
to  ask  to  be  excused  in  the  large  numbers  that  they  have.  It  would 
have  been  very  proper,  under  such  circumstances,  if  we  had 
adjourned  over  to-morrow,  for  it  is  perfectly  plain  that  there  will 
be  a  very  light  attendance,  possibly  not  a  quorum ;  and  it  is  owing 
to  the  fact  that  we  could  not  make  our  arrangements  to  stay  here 
day  in  and  day  out,  as  we  intend  to  do  for  the  remainder  of  the 
period,  and  I  think  it  would  be  pressing  the  matter  very  far  to  refuse 
to  excuse  the  gentleman  who  has  just  asked  to  be  excused,  when  there 
have  been  twenty  or  thirty  excuses  already  granted  this  morning.  I 
have  spoken  more  to  a  question  of  privilege,  and  more  to  protect 
one  man  from  being  punished  by  the  Convention,  by  being  com- 
pelled to  stay  here  when  we  have  already  excused  twenty  or  thirty, 
than  from  any  other  motive;  and  I  hope  that  the  excuse  that  is  askd 
for  will  be  granted,  and  I  also  hope  that  every  delegate  will,  from 
this  time  forth,  so  arrange  his  business  and  social  affairs  as  that  he 


August  17.]  CONSTITUTIONAL  CONVENTION.  695 

may  be  here  and  attend  to  his  work,  and  only  go  away,  as  suggested 
by  the  gentleman  from  Onondaga,  in  the  case  of  illness  or  some- 
thing of  that  nature. 

Mr.  Davis  —  Mr.  President,  it  is  a  well-known  fact  that  the  gen- 
tleman from  Onondaga  for  the  past  three  weeks  has  voted  in  the 
negative  upon  every  motion  to  excuse  a  member,  and  it  has  not 
been  until  this  moment  that  he  has  risen  to  his  feet  and  made  the 
speech  that  he  has.  It  is  not  for  to-morrow,  Mr.  President,  that 
I  ask  to  be  excused.  It  is  for  next  Monday  and  Tuesday.  I  do 
not  ask  the  excuse  for  the  purpose  of  saving  the  little  ten  dollars  a 
day.  I  care  nothing  for  that.  Mr.  Bowers  has  very  ably  stated 
the  motives  of  members  in  asking  for  excuses.  I  believe  that  it  is 
due  to  this  House  to  be  informed  when  a  member  expects  to  be 
absent.  I  am  an  official  of  the  county  of  Erie.  The  laws  of  the 
State  of  New  York  require  my  attendance  in  the  county  of  Erie  on 
Tuesday,  and  whether  the  Convention  sees  fit  to  act  as  Mr.  Alvord 
suggests  or  to  grant  my  request,  it  will  be  necessary  for  me  to  be 
absent  next  Tuesday.  I  ask  the  Convention  to  grant  me  this 
excuse. 

Mr.  McMillan  —  Mr.  President,  there  is  a  question  that  is  above 
and  beyond  all  this.  Mr.  Davis,  I  assume,  has  asked  leave  to  be 
excused  for  the  reason  that  in  the  event  that  there  shall  be  a  call  of 
this  House  and  the  sergeant-at-arms  be  sent  for  those  who  are  not 
excused,  he  may  be  relieved  from  the  humiliation  of  purging  him- 
self from  contempt  before  the  bar  of  this  Convention.  That  is  the 
reason  why  these  excuses  are  made,  and  not  for  the  reason  that 
members  wish  to  preserve  the  ten  dollars  that  are  paid  to  them. 
(Applause.) 

Mr.  Choate  —  If  Mr.  Davis  had  stated  when  he  made  his  request 
that  he  desired  to  be  absent  on  official  business  nobody  would  have 
objected.  I  stand  by  the  gentleman  from  Onondaga  in  all  that  he 
has  said,  and  this  talk  of  any  reflection  on  anybody  being  intended 
or  inadvertently  made,  is,  in  my  judgment,  wholly  without  founda- 
tion. Now,  let  us  see  how  this  matter  stands.  The  law  under 
which  we  sit  prescribes  a  certain  compensation.  It  gives  the  Con- 
vention power  to  regulate  the  compensation  in  case  of  absence. 
We  went  on  here  for  two  or  three  months  and  found  the  attendance 
getting  very  slight.  We  passed  this  rule,  which  should  deprive  any 
member  of  his  compensation  during  absence  on  days  on  which  he 
had  not  leave  of  absence,  and  it  brought  up  the  attendance  immedi- 
ately to  what  was  not  only  a  quorum,  but  to  almost  the  entire  body 
of  the  delegates  elected.  Now,  my  proposition  is,  that  no  gentle- 


696  REVISED  RECORD.  [Friday, 

man  in  this  Convention  ought  to  have,  by  leave  of  the  House, 
absence  to  attend  to  private  business,  or  to  attend  to  what  Mr. 
Bowers  so  well  refers  as  social  pleasure.  If  he  does  so,  let  him 
do  it  at  his  own  expense,  and  let  the  rule  be  enforced,  and  I  do  not 
feel  at  all  oppressed  by  the  sentimental  views  that  he  has  uttered. 
I  judge  from  the  experience  of  the  past  that  if  you  resort  to  such 
administration  of  the  rules  as  that,  the  attendance  will  be  all  that 
ought  to  be  required. 

Mr.  Hotchkiss  —  Mr.  President,  I  do  not  propose  to  detain  the 
Convention  by  debating  any  part  of  this  question.  I  merely  wish 
to  suggest,  in  answer  to  some  portion  of  the  remarks  of  the  Presi- 
dent, that  he  will  recall  that  the  period  during  which  the  attendance 
was  slack  was  during  the  period  prior  to  the  first  of  July,  when  most 
of  the  absentees,  being  lawyers,  were  confined  to  their  homes  by 
business  in  the  courts.  That  certainly  was  my  condition,  and  I 
believe  it  to  have  been  the  condition  of  a  large  proportion  of  the 
gentlemen  who  were  then  detained. 

Mr.  Tekulsky  —  Mr.  President,  it  seems  to  me  that  there  is  a 
great  deal  of  unnecessary  talk  about  the  compensation  paid  here  to 
the  delegates  of  this  Convention.  For  the  benefit  of  those  gentle- 
men who  have  millions  behind  them,  I  wish  to  state  that  the  ten 
dollars  a  day  to  the  majority  of  the  members  of  this  Convention 
does  not  pay  them  for  their  expenses  and  their  neglect  of  business. 
I  do  not  know  of  a  delegate  in  this  Convention,  who  has  any  busi- 
ness at  all  to  attend  to,  whom  his  attendance  here  does  not  cost 
more  than  he  receives,  besides  the  neglect  of  his  business  and  the 
loss  of  trade.  Now,  Mr.  President,  it  is  not  a  question  of  what  a 
man  receives.  There  is  not  a  delegate  in  this  room  that  desires  to 
be  excused  that  has  not  a  good  and  sufficient  reason,  and  it  is  not 
for  the  reason  that  he  wishes  to  go  off  on  a  pleasure  trip,  or  a  fish- 
ing excursion  or  to  go  to  the  races.  He  desires  to  go  because  he 
is  compelled  to  go.  No  man,  when  he  took  his  oath  of  office  here, 
took  an  oath  which  bound  him  to  remain  here  right  or  wrong.  As 
long  as  the  Convention  has  a  quorum  in  attendance  it  is  right  to 
excuse  any  one  of  the  delegates  for  a  day  or  two  when  he  gives  good 
and  sufficient  reasons.  His  compensation  has  nothing  at  all  to  do 
with  the  question.  The  question  is  whether  the  gentleman  shall 
be  excused  for  the  time  that  he  is  to  be  away.  For  one,  I  want  to 
give  fair  notice  here,  Mr.  President,  that  I  am  properly  at  some 
times  called  away  in  order  to  attend  to  my  affairs,  which  I  have 
neglected  since  I  have  been  here,  and  I  have  not  been  excused  but 
for  two  days  since  the  Convention  opened;  and  if  I  could  not  be 


August  17.]  CONSTITUTIONAL  CONVENTION.  697 

excused,  I  should  certainly  offer  my  resignation  as  a  delegate  to 
this  Convention. 

Mr.  Dean  —  Mr.  President,  I  move  the  previous  question. 

The  President  pro  tern,  put  the  question  on  the  a'.ioption  of  the 
previous  question,  and  it  was  determined  in  the  affirmative. 

The  President  pro  tern,  then  put  the  question  on  excusing  Mr. 
Davis,  as  requested,  and  he  was  so  excused. 

The  President  pro  tern. —  Reports  of  standing  committees  are  now 
in  order. 

Mr.  Vedder,  from  the  Committee  on  Legislative  Powers  and 
Duties,  to  which  was  referred  the  proposed  constitutional  amend- 
ment, introduced  by  Mr.  C.  A.  Fuller  (introductory  No.  200), 
entitled,  "  Proposed  constitutional  amendment  to  amend  section  16 
of  article  3  of  the  Constitution,  relating  to  restrictions  as  to  private 
and  local  bills,"  reported  in  favor  of  the  passage  of  the  same,  with 
some  amendments. 

The  Secretary  read  the  proposed  amendment,  the  report  of  the 
committee  was  received,  and  said  amendment  referred  to  the  Com- 
mittee of  the  Whole. 

Mr.  Root,  from  the  Committee  on  Judiciary,  to  which  was 
referred  the  proposed  constitutional  amendment,  introduced  by  Mr. 
Becker  (introductory  No.  329),  entitled,  "  Proposed  constitutional 
amendment  to  amend  section  i  of  article  10  of  the  Constitution,  so 
as  to  prevent  the  removal  by  the  Governor  of  public  officers  except 
for  cause,"  reported  in  favor  of  the  passage  of  the  same,  with  some 
amendments. 

The  Secretary  read  the  proposed  amendment;  the  report  of  the 
committee  was  agreed  to,  and  said  amendment  referred  to  the 
Committee  of  the  Whole. 

Mr.  Root,  from  the  Committee  on  Judiciary,  to  which  was  referred 
the  proposed  constitutional  amendment,  introduced  by  Mr.  Doty 
(introductory  No.  86),  entitled,  "  Proposed  constitutional  amend- 
ment to  amend  section  17  of  article  I  of  the  Constitution,  relating 
to  the  appointment  of  commissioners  of  codification,"  reported  in 
favor  of  the  passage  of  the  same. 

The  report  was  agreed  to,  and  said  amendment  was  referred  to 
the  Committee  of  the  Whole. 

The  Secretary  called  the  Canal  Committee. 

Mr.  Cady  —  In  connection  with  the  bill  which  I  report,  on  behalf 
of  that  committee,  I  desire,  in  deference  to  the  wishes  of  certain 
members  of  the  same,  to  make  a  brief  statement  of  the  attitude 


698  REVISED  RECORD.  [Friday, 

of  that  committee  and  as  to  their  position  upon  the  measures 
pending  before  it.  All  of  the  proposed  amendments  referred  to  the 
Canal  Committee,  with  the  exception  of  two,  have  been  disagreed 
with  by  the  committee.  The  principal  amendments  referred 
to  the  committee  grouped  themselves  under  two  heads.  First, 
those  which  provided  for  the  sale  or  disposition  of  canals  to  the 
federal  government;  and,  second,  those  which  contemplated  very 
extensive  improvements  and  large  expenditures  upon  the  canal  sys- 
tem of  the  State.  As  to  the  first  class  of  amendments,  those  relating 
to  the  sale  or  disposition  of  the  canals,  the  committee  was  unani- 
mous in  opposing  and  disagreeing  with  them  all.  As  to  the  other 
amendments,  contemplating,  as  I  say,  extensive  improvements  and 
large  expenditures,  a  majority  of  the  committee  were  opposed  to 
them.  But  four  members  of  the  committee,  Mr.  Williams,  Mr. 
Floyd,  Mr.  Hottenroth  and  Mr.  Fraser,  voted  in  favor,  in  the  com- 
mittee, of  those  proposed  amendments,  and  desire  to  have  that  vote 
of  theirs  publicly  stated.  And  for  that  reason  I  now  make  this 
statement  verbally,  without  submitting  a  written  statement. 

Mr.  Cady,  from  the  Committee  on  Canals,  then  reported  proposed 
constitutional  amendment  to  section  3,  article  7  (introductory  No. 
386,  printed  No.  430),  relating  to  canals,  which  report  was  received, 
and  said  amendment  referred  to  Committee  of  the  Whole. 

Mr.  Cady,  from  the  Committee  on  Canals,  also  reported  proposed 
constitutional  amendment  to  amend  section  6  of  article  7  (intro- 
ductory No.  387,  printed  No.  387),  which  was  received,  and  said 
amendment  referred  to  the  Committee  of  the  Whole. 

The  President  pro  tern. —  The  report  from  the  Judiciary  Commit- 
tee is  also  a  favorable  report  upon  the  last  section  of  overture  No. 
36,  introduced  by  Mr.  Lauterbach. 

Mr.  Cady  —  Mr.  President,  I  desire  at  this  time,  and  in  conjunc- 
tion with  the  report  of  the  Canal  Committee,  to  move  that  amend- 
ment No.  254,  introduced  by  Mr.  Cassidy,  and  heretofore  favorably 
reported  by  the  Committee  on  State  Finance  and  Taxation,  and 
which  I  moved  to  lay  upon  the  table  some  time  since,  on  the  coming 
in  of  that  report,  be  now  taken  from  the  table  and  referred  to  the 
Committee  of  the  Whole.  That  is,  after  consulting  with  Mr.  Acker, 
chairman  of  the  Committee  on  State  Finance  and  Taxation,  and 
with  Mr.  Cassidy,  the  mover.  They  were  referred  to  both  commit- 
tees and  should  be  considered  jointly. 

The  President  pro  tern. —  If  Mr.  Cady  will  defer  that  motion  until 
after  reports  of  committees  are  received,  it  will  then  be  entertained 
by  the  Chair. 


August  17.]  CONSTITUTIONAL  CONVENTION.  699 

Mr.  Augustus  Frank,  from  the  Committee  on  Banking  and 
Insurance,  to  which  was  referred  the  proposed  constitutional 
amendment,  introduced  by  Mr.  Hawley  (introductory  No.  207), 
entitled,  "Proposed  constitutional  amendment  to  amend  section  6 
of  article  8  of  the  Constitution,  relating  to  banks,"  reported  in  favor 
of  the  passage  of  the  same. 

The  report  was  agreed  to  and  said  amendment  referred  to  Com- 
mittee of  the  Whole. 

Mr.  Augustus  Frank,  from  the  Committee  on  Banking  and 
Insurance,  to  which  was  referred  proposed  constitutional  amend- 
ment, introduced  by  Mr.  Marshall  (introductory  No.  69),  entitled, 
"  Proposed  constitutional  amendment  to  amend  section  7  of  article 
8  of  the  Constitution,  relative  to  the  liability  of  the  stockholders  of 
banking  corporations,"  reported  in  favor  of  the  passage  of  the 
same. 

The  report  was  agreed  to  and  said  amendment  referred  to  the 
Committee  of  the  Whole. 

Mr.  Augustus  Frank,  from  the  Committee  on  Banking  and 
Insurance,  to  which  was  referred  proposed  constitutional  amend- 
ment, introduced  by  Mr.  Kellogg  (introductory  No.  188),  entitled, 
"  Proposed  constitutional  amendment  to  amend  section  4  of  article 
8  of  the  Constitution,  relating  to  unclaimed  deposits  in  savings 
banks  or  institutions  for  savings,  and  defining  the  powers  of  the 
Legislature  in  relation  thereto,"  reported  adversely  upon  the  pro- 
posed amendment. 

The  report  of  the  committee  was  agreed  to  and  the  proposition 
rejected. 

Mr.  Augustus  Frank,  from  the  Committee  on  Banking  and 
Insurance,  to  which  was  referred  proposed  constitutional  amend- 
ment, introduced  by  Mr.  Andrew  H.  Green  (introductory  No.  372, 
printed  No.  435),  reported  that  the  proposed  amendment  had  been 
considered  by  the  committee,  and  that  the  committee  asked  for  the 
printing  of  the  amendment  and  report  for  the  consideration  of  this 
Convention. 

The  President  pro  tern. —  There  being  no  objection,  it  is  so 
ordered. 

Mr.  Hedges,  from  the  Committee  on  Militia  and  Military  Affairs, 
to  which  was  referred  proposed  constitutional  amendment  (intro- 
ductory No.  40),  introduced  by  Mr.  Rolls,  entitled,  "  Proposed  con- 
stitutional amendment  to  amend  article  n  of  the  Constitution  in 
regard  to  militia,"  reported  adversely  thereto. 


7oo  REVISED  RECORD.  [Friday, 

Mr.  Holls  —  Mr.  President,  I  wish  to  state  that  that  was  intro- 
duced by  request,  and  that  I  am  entirely  satisfied  with  the  judgment 
of  the  very  competent  and  careful  committee  which  has  considered 
it,  and  sincerely  hope  the  report  will  be  agreed  to. 

The  report  of  the  committee  was  agreed  to  and  the  proposition 
rejected. 

Mr.  Marshall,  from  the  Committee  on  Future  Amendments,  to 
which  was  referred  the  proposed  constitutional  amendment,  intro- 
duced by  Mr.  C.  H.  Truax  (introductory  No.  256),  entitled,  "  Pro- 
posed constitutional  amendment  to  amend  article  14  of  the  Consti- 
tution," reported  in  favor  of  the  passage  of  the  same  without 
amendment. 

The  report  of  the  committee  was  agreed  to,  and  said  amendment 
referred  to  the  Committee  of  the  Whole. 

Mr.  Cochran  —  May  I  ask  for  information.  I  find  that  on  July 
twenty-seventh  the  Committee  on  Future  Amendments  reported 
this  proposed  amendment  adversely  to  the  extent  that  they  reported 
another  amendment  which  they  said  covered  it.  May  I  ask  if  this 
is  the  amendment  which  was  reported  at  that  time? 

Mr.  Marshall  —  Mr.  President,  that  was  an  error  on  the  former 
occasion.  This  was  not  included  in  the  former  report.  By  mis- 
take the  introductory  number  was  included  in  the  report. 

Mr.  Cochran  —  So  it  appears  in  the  Journal. 

Mr.  Marshall  —  Yes. 

Mr.  Marshall,  from  the  Committee  on  Future  Amendments,  to 
which  was  referred  the  proposed  constitutional  amendment,  intro- 
duced by  the  Committee  on  Future  Amendments  (introductory  No. 
368,  printed  No.  375),  entitled,  "  Proposed  constitutional  amend- 
ment to  amend  article  13  of  the  Constitution,  relating  to  future 
amendments,"  reported  in  favor  of  the  passage  of  the  same,  with 
some  amendments. 

The  President  pro  tern. —  The  Secretary  will  read  the  amendments. 

On  motion  of  Mr.  Mereness,  the  reading  of  these  amendments 
was  dispensed  with. 

The  report  of  the  committee  was  agreed  to,  and  said  amendment 
referred  to  the  Committee  of  the  Whole. 

Mr.  Marshall  —  And  keeps  its  place  on  the  general  orders? 

The  President  pro  tern. —  Keeps  its  place  on  general  orders. 

Mr.  Hirschberg,  from  the  Committee  on  Privileges  and  Elections, 
submitted  a  report,  which  was  read  by  the  Secretary,  as  follows: 


August  17.]  CONSTITUTIONAL  CONVENTION.  701 

REPORT  OF  THE  COMMITTEE  ON  PRIVILEGES  AND  ELECTIONS. 

In  the  matter  of  the  contest  of  William  H.  Davis,  Luther  W. 
Emerson,  Henry  J.  Brown,  George  W.  Tompkins  and  Christian 
F.  Gull  for  seats  in  the  Convention  now  occupied  by  Mirabeau 
Towns,  William  H.  Cochran,  John  G.  Schumaker,  John  B. 
Meyenborg  and  Almet  F.  Jenks  for  the  Second  Senatorial 
District. 

To  the  Constitutional  Convention: 

The  Committee  on  Privileges  and  Elections,  to  whom  was 
referred  the  petition  of  William  H.  Davis,  Luther  W.  Emerson, 
Henry  J.  Brown,  George  W.  Tompkins  and  Christian  F.  Gull, 
claiming  that  they  were  duly  elected  delegates  to  the  Constitutional 
Convention  from  the  Second  Senatorial  District  of  the  State  of  New 
York,  at  the  last  general  election,  and  are  entitled  to  the  seats  now 
occupied  by  Mirabeau  L.  Towns,  William  H.  Cochran,  John  G. 
Schumaker,  John  B.  Meyenborg,  and  Almet  F.  Jenks,  respectfully 
report : 

That  they  have  heard  the  proofs  and  allegations  of  the  parties, 
and  have  given  to  both  parties  ample  opportunity  to  submit  such 
evidence  as  they  desired.  That  they  have  carefully  considered  the 
evidence,  and  that,  in  the  opinion  of  said  committee,  the  following 
facts  were  established: 

As  a  result  of  the  official  canvass  of  the  vote  for  district  delegates 
to  the  Constitutional  Convention  from  the  Second  Senatorial  Dis- 
trict, the  board  of  canvassers  certified  that  the  contestees  and  the 
contestants  received  respectively  the  following  number  of  votes: 

Mirabeau  L.  Towns 18,993 

Wm.  H.  Cochran 19,018 

John  G.  Schumaker 19,009 

John  B.  Meyenborg 18,990 

Almet  F.  Jenks 18,962 

William  H.  Davis 16,601 

Luther  W.   Emerson 16,594 

Henry  J.  Brown 16,595 

George  W.  Tompkins 16,601 

Christian  F.  Cull 16,590 

There  were  also  a  few  scattering  votes  for  other  candidates. 
From  these  figures  it  appears  that  the  sitting  delegates  received 
the  following  majorities: 


702  REVISED  RECORD.  [Friday, 

M.  L.  Towns 2,392 

W.  H.  Cochran 2,424 

J.  G.  Schumaker 2,414 

J.  B.  Meyenborg 2,389 

A.  F.  Jenks 2,372 

The  Second  Senatorial  District  is  composed  of  the  Seventh, 
Ninth,  Tenth,  Thirteenth  and  Twenty-second  wards  of  the  city  of 
Brooklyn.  The  claim  is  made  by  the  contestants  that  frauds  were 
committed  at  the  last  election  of  such  a  character  as  to  justify  the 
rejection  of  the  returns  in  several  of  the  election  districts  in  this 
Senate  District,  particularly  in  the  Ninth  and  Twelfth  wards. 

The  evidence  shows  that  a  large  number  of  voters  in  various  dis- 
tricts received  assistance  in  folding  their  ballots,  and  it  is  claimed 
that  this  assistance  was  rendered  under  circumstances  not  justified 
by  the  statute,  and  that  receiving  assistance  under  such  circum- 
stances was  a  fraud  on  the  election  law  of  such  a  character,  and  was 
carried  on  to  such  an  extent,  as  to  justify  the  rejection  of  the  entire 
returns  in  the  districts  where  such  assistance  was  received.  There 
is  some  evidence  that  in  a  large  number  of  cases  the  persons  who 
received  assistance  were  not  physically  disabled  to  such  an  extent 
as  to  justify  such  assistance.  But  the  number  of  persons  who  thus 
wrongfully  claimed  physical  disability,  and  thereby  received  assist- 
ance in  folding  their  ballots,  is  not  definitely  ascertained  in  any 
district.  The  contestants  claim  that  by  reason  of  this  uncertainty, 
the  whole  number  is  vitiated,  and  should  be  rejected.  In  most  cases 
the  persons  thus  claiming  assistance  took  the  oath  of  disability  pre- 
scribed by  the  election  law;  but  in  a  large  number  of  cases  no  such 
oath  was  taken,  and  in  several  districts  assistance  was  rendered 
without  any  form  of  claim  by  the  voters,  and  apparently  without 
protest  by  the  election  officers. 

It  is  conceded  that  the  persons  receiving  this  assistance,  whether 
after  or  without  taking  the  oath  of  disability,  were  legal  voters  in 
the  district  where  they  respectively  voted.  In  some  districts  the 
irregularities  of  this  character  were  so  numerous  as  to  justify  the 
conclusion  that  they  were  purposely  permitted  by  the  election  offi- 
cers, and  the  violation  of  the  election  law  by  such  officers,  in  per- 
mitting voters  to  disregard  the  requirements  of  the  statute,  would 
in  some  cases  justify  the  exclusion  of  the  entire  return.  The  proof 
of  such  violations  in  this  contest  is  confined  to  a  very  few  districts, 
and  even  if  all  the  returns  which  we  could  find  were  affected  by 
such  irregularities,  were  excluded,  there  would  still  remain  a  large 
majority  of  votes,  certified  by  regular  returns,  for  each  of  the  sitting 
delegates.  The  aggregate  number  of  votes  which  we  would  be 


August  17.]  CONSTITUTIONAL  CONVENTION.  705 

justified  in  rejecting  under  any  circumstances  would  not  be  suffic- 
ient to  overcome  the  majority  as  certified  for  the  sitting  delegates. 

There  is  also  evidence  of  a  few  fraudulent  registrations  and 
repeatings,  and  also  of  electioneering  within  150  feet  of  the  polling 
places.  But  the  number  of  cases  of  these  violations  is  not  sufficient 
to  materially  affect  the  result. 

Your  committee  are  of  the  opinion  that  the  evidence  in  this  con- 
test is  insufficient  to  warrant  the  exclusion  of  the  contestees  from 
their  seats  in  this  Convention,  and  that  the  petition  of  the  contest- 
ants should  be  dismissed. 

We,  therefore,  recommend  the  adoption  of  the  following 
resolution : 

Resolved,  That  the  petition  of  William  H.  Davis,  Luther  W. 
Emerson,  Henry  J.  Brown,  George  W.  Tompkins  and  Christian  F. 
Gull,  heretofore  presented  in  this  Convention,  praying  that  they  be 
awarded  the  seats  now  occupied  by  Mirabeau  L.  Towns,  William 
H.  Cochran,  John  G.  Schumaker,  John  B.  Meyenborg  and  Almet  F. 
Jenks,  as  delegates  from  the  Second  Senatorial  District,  be  and  the 
same  is  hereby  dismissed. 

All  of  which  is  respectfully  submitted. 

Dated  August  16,  1894,  A.  D. 

M.  H.  HIRSCHBERG, ' 

Chairman. 

Mr.  Hirschberg  —  Mr.  President,  as  this  report  emanates  from 
the  Committee  on  Privileges  and  Elections,  it  is,  perhaps,  unneces- 
sary that  I  should  state  that  it  is  unanimous.  I,  therefore,  in  view 
of  that  fact,  and  the  lateness  of  the  hour,  move  that  it  be  received 
now,  and  that  the  resolution  recommended  by  the  committee 
be  adopted. 

The  President  pro  tern,  put  the  question  on  the  adoption  of  the 
report. 

Mr.  Mereness  moved  that  the  roll-call  be  dispensed  with,  and  it 
was  so  ordered. 

The  question  on  the  adoption  of  the  report  was  then  determined 
in  the  affirmative. 

Mr.  Hirschberg  —  I  move  that  the  report  be  printed  with  the 
other  documents  of  the  Convention. 

The  President  pro  tern. —  If  there  are  no  objections  to  the  motion 
of  Mr.  Hirschberg,  this  report  will  be  printed  and  placed  upon  the 
files  of  members.  If  there  is  no  objection  it  is  so  ordered. 

Mr.  Cady  —  Mr.  President,  I  now  renew  my  motion,  if  it  be  in 


704  REVISED  RECORD.  [Friday, 

order,  in  relation  to  the  amendment  of  Mr.  Cassidy,  and  ask'  that 
No.  254  be  taken  from  the  table  and  referred  to  the  Committee  of 
the  Whole. 

The  President  pro  tern. —  If  there  is  no  objection,  it  will  be  so 
referred. 

Mr.  Bush  —  Mr.  President,  I  would  like  to  ask  leave  of  absence 
until  Monday  night. 

The  President  pro  tern,  put  the  question  on  excusing  Mr.  Bush, 
as  requested,  and  he  was  so  excused. 

The  President  pro  tern,  announced  general  orders. 

The  Secretary  called  general  order  No.  14,  introduced  by  Mr. 
Mereness. 

Mr.  Mereness  moved  that  the  Convention  go  into  Committee  of 
the  Whole  on  this  amendment. 

The  President  pro  tern,  put  the  question  on  the  motion  of  Mr. 
Mereness,  and  it  was  determined  in  the  affirmative. 

Mr.  Cookinham  in  the  chair. 

The  Chairman  —  The  Convention  is  now  in  Committee  of  the 
Whole  on  proposed  constitutional  amendment  No.  49,  general 
order  No.  14. 

Mr.  Doty  —  Mr.  Chairman,  I  believe  it  may  be  said  that  at  this 
point  in  the  work  of  the  Convention,  three  propositions  have  been 
fairly  well  established: 

First. —  That  there  is  a  weakness  among  many  members  to 
dignify  a  local  or  occasional  evil  into  a  universal  one,  and  to  make 
haste  to  apply  constitutional  treatment. 

Second. —  That  there  exists  in  this  body  a  general  distrust  of  the 
Legislature  and  of  every  other  legislative  and  administrative  depart- 
ment of  State  government;  and, 

Third. —  While  there  is  a  general  attachment  to  the  idea  of  home 
rule  in  the  abstract  in  the  Convention,  scarcely  a  measure  has  been 
reported  where  the  question  is  involved  which  in  its  practical  opera- 
tion is  not  designed  to  destroy  home  rule. 

It  is  not  frequent  that  one  measure  embodies  all  these  propositions, 
but  the  pending  proposed  amendment  does.  I  may  be  wrong  in  my 
judgment  of  what  work  the  people  have  appointed  us  to  perform, 
but  I  believe  that  as  a  general  proposition  we  will  best  subserve  the 
public  interests  by  confining  our  attention  to  those  features  of  the 
Constitution  as  to  which  there  is  a  distinct  and  generally  recog- 
nized demand  and  necessity  for  alteration  and  amendment. 

Mr.  Chairman,  no  abuse  exists  or  is  likely  to  exist  in  this  Stale 


August  17.]  CONSTITUTIONAL  CONVENTION.  705 

which  will  justify  us  in  proposing  to  the  people  an  amendment  so 
extraordinarily  unwise  as  this  one,  and  I  have  been  unable  to 
discover  in  the  argument  in  support  of  the  proposition  a  single  sub- 
stantial reason  for  its  adoption.  It  may  seem,  without  much  con- 
sideration of  its  effect,  a  good  and  harmless  thing  to  put  into  the 
Constitution,  simply  to  enhance  its  consistent  character,  even  if  it 
will  not  effect  any  useful  purpose,  but  a  superficial  examination  of 
its  provisions  cannot  fail  to  convince  one  that  the  proposition  is  not 
only  unwise  but  dangerous. 

The  existing  provisions  of  the  Constitution  have  for  nearly  half 
a  century  furnished  the  State  with  adequate  protection  from  the 
imaginary  abuses  which  this  proposition  is  designed  to  reach,  and 
there  is  to-day  no  complaint  heard  from  any  quarter  that  calls  for 
response  from  the  Convention  on  this  subject.  On  the  contrary, 
the  adoption  of  this  amendment  would  surety  create  difficulties 
whose  extent  can  only  be  imperfectly  anticipated.  ,, 

The  amendment,  by  an  inexorable  rule,  completely  ties  the  hands 
of  every  department  of  State  and  municipal  government  from  the 
Legislature  to  the  board  of  trustees  of  a  village  in  the  matter  of 
compensation;  it  abridges  home  rule  at  a  most  vital  and  important 
point  and  takes  from  those  bodies,  most  competent  to  act  upon  the 
question  safely  and  justly,  the  power  to  say  how  their  officers  and 
servants  shall  be  compensated.  In  general  terms,  the  amendment 
prohibits  the  payment  of  extra  compensation  or  salary  to  any  officer, 
State  or  municipal,  under  any  and  all  circumstances  during  the  term 
for  which  he  was  elected  or  appointed. 

It  takes  no  account  of  emergencies  or  exigencies  which  may  arise 
during  the  next  quarter  of  a  century  in  this  State  to  make  it  not 
only  proper  but  necessary,  for  the  purpose  of  securing  efficient 
public  service,  to  increase  the  compensation  or  salary  of  public 
officers  during  their  term  of  office.  A  few  instances  will  only 
imperfectly  indicate  the  practical  operation  of  this  amendment. 
The  rapid  growth  of  various  parts  of  the  State  imposes  many  addi- 
tional duties  on  public  officers  during  their  term  of  office.  The 
office  of  surrogate,  for  example,  is  becoming  one  of  increasing 
importance,  and  even  during  the  space  of  six  years  its  character  in 
certain  localities  may  be  elevated  to  a  point  where  the  existing  salary 
is  utterly  inadequate  to  secure  efficient  service.  The  same  may  be 
said  of  the  office  of  county  judge,  and,  indeed,  of  every  other  public 
office. 

The  existing  ballot  law  imposed  very  considerable  additional 
duties  upon  county  clerks  throughout  the  State,  for  which  boards 

45 


706  REVISED  RECORD.  [Friday, 

of  supervisors  very  properly  granted  extra  compensation,  but  which 
they  would  be  prohibited  from  doing  if  this  amendment  were  in 
operation.  I  know  of  a  village  where  the  members  of  the  board  of 
health  receive  a  salary  of  ten  dollars  a  year;  it  happened  that  an 
epidemic  of  small-pox  overtook  this  ordinarily  healthy  village,  and, 
from  a  practical  sinecure,  the  office  of  health  officer  became  an 
onerous  and  dangerous  one;  the  board  of  trustees  of  the  village  very 
properly  awarded  to  the  members  of  the  board  of  health  an  addi- 
tional remuneration  commensurate  with  their  extraordinary  ser- 
vices. Under  the  proposed  amendment  this  would  be  impossible. 
It  would  be  equally  impossible  to  increase  the  pay  of  the  town  night- 
watch,  no  matter  how  pressing  the  emergency;  in  fact,  the  proposed 
amendment  invades  every  city,  county,  town  and  village,  and 
imposes  an  effectual  restraint  upon  the  power  to  regulate  their  own 
affairs  upon  the  question,  according  to  the  needs  of  the  particular 
locality,  under  constantly  changing  conditions. 

The  charter  of  the  city  of  Rochester  provides  that  the  salaries  of 
its  officers  shall  be  fixed  each  year  for  the  current  year,  although  the 
term  of  office  extends  beyond  the  year.  This  amendment  would 
prohibit  this  practice,  and  would  seem  to  prevent,  also,  the  increase 
of  compensation  of  all  persons  appointed  to  serve  during  the  pleas- 
ure of  the  appointing  power. 

These  instances  are  some  that  have  casually  occurred  to  me;  a 
careful  study  of  the  subject  will  point  out  many  more  serious  diffi- 
culties in  the  way  of  the  operation  of  this  bill.  It  is  loading  down 
the  Constitution  with  an  unnecessary,  unsafe  and  unpopular  meas- 
ure, whose  merits  are  completely  overborne  by  the  evil  feature  which 
it  contains.  The  proposed  measure  will  be,  in  my  judgment,  not 
only  universally  disapproved,  but,  if  not  an  absolutely  dead  letter, 
will  be  a  serious  hindrance  to  the  public  service. 

Mr.  Chairman,  I  have  introduced  an  amendment  to  this  proposi- 
tion, which  in  some  measure  mitigates  the  effect  of  it,  but  I  do  not 
regard  the  amendment  as  furnishing  sufficient  safeguards  to  urge 
its  adoption.  I,  therefore,  hope  that  not  only  the  original  amend- 
ment, but  the  amendment  which  I  proposed,  will  be  voted  down. 

Mr.  Mereness  —  Mr.  Chairman,  if  I  understand  the  gentleman 
who  offered  this  amendment  correctly,  he  is  opposed  to  the  whole 
spirit  of  the  amendment  before  the  Committee  of  the  Whole,  and 
has  virtually  asked  the  committee  to  vote  down  his  amendment  and 
the  main  proposition  as  well.  When  this  matter  was  before  the 
committee  on  a  former  occasion,  I  stated  generally  the  purpose  for 
which  it  was  offered,  and  I  think  there  was  a  very  full  attendance 
on  that  occasion,  and  I  do  not  know  that  I  care  to  go  over  the 


August  17.]  CONSTITUTIONAL  CONVENTION.  707 

ground  again.  As  abuses,  I  called  the  attention  of  the  committee 
on  that  occasion  to  a  number  that  occurred  during  the  term  of 
Governor  Cornell,  which  were  of  such  magnitude  that  he  felt  called 
upon  to  veto  acts  of  the  Legislature.  I  think  there  is  no  doubt 
about  the  correctness  of  the  principle  involved,  because  it  is  a  prin- 
ciple which  is  recognized  in  several  other  sections  of  the  Constitu- 
tion. As  I  stated  before,  all  officers  whose  salaries  are  fixed  at  a 
definite  sum  by  the  Constitution  are  prohibited  by  another  pro- 
vision from  having  that  salary  changed  during  the  official  term,  and 
I  can  see  no  reason  why  that  principle,  which  now  prevails  in  refer- 
ence to  salaries  fixed  by  the  Constitution  and  to  all  State  officers, 
should  not  be  added  generally  to  all  public  officers  who  hold  office 
for  a  definite  term.  The  principle  is  also  recognized  in  another  pro- 
vision of  the  Constitution,  to  which  I  called  the  attention  of  the 
committee,  which  is  that  no  private  or  local  bill  shall  be  passed  which 
shall  increase  or  decrease  the  compensation,  fees,  percentage  or 
allowances  of  any  public  officer  during  his  term  of  service;  but,  as 
I  called  to  the  attention  of  the  committee  on  the  former  occasion, 
the  decision  of  the  Court  of  Appeals  was  to  the  effect  that  that  did 
not  apply  to  a  salaried  office,  and  because  of  the  difference  of 
the  words  used,  this  amendment  was  suggested.  It  was  very  care- 
fully considered  by  the  Committee  on  the  Powers  and  Duties  of  the 
Legislature,  and,  although  the  original  proposition  was  practically 
in  the  form  suggested  by  Mr.  Doty  in  his  amendment,  which  he  has 
discredited,  the  committee  thought  the  language  finally  reported 
was  better  calculated  to  accomplish  the  purpose  desired. 

Now,  as  to  the  necessity  of  this  matter,  I  think  that  it  is  sufficient 
to  say  that  in  sixteen  States  of  this  Union,  and  notably  in  the  great 
States  of  Pennsylvania,  Illinois  and  Missouri,  besides  several  others, 
it  has  been  found  necessary  to  put  a  provision  into  the  Constitution 
which  should  prevent  a  public  officer  from  soliciting  the  support  of 
constituents,  when  he  knew  what  he  had  to  receive,  and  then  as 
soon  as  he  was  elected,  to  go  about,  seeking  by  wire  pulling  and 
log  rolling,  to  get  his  salary  increased.  I  submit  that  it  is  not  fair 
to  the  persons  who  have  to  pay  those  salaries  to  have  to  be  put  to 
that  disadvantage,  and  I  believe  further,  that  the  language  used  by 
the  committee  in  its  final  report  is  well  calculated  to  accomplish  the 
purpose  sought  to  be  accomplished,  and  for  that  reason  I  hope  that 
the  amendment  of  Mr.  Doty  will  be  voted  down. 

Mr.  Countryman  —  Mr.  Chairman,  will  the  gentleman  allow  me 
to  ask  him  a  question?  I  would  like  to  inquire  whether  he  under- 
stands by  this  amendment  that  it  includes  judges  of  the  courts? 

Mr.  Mereness  —  I  do  not  know  whv  it  should  not. 


708  REVISED  RECORD.  [Friday, 

Mr.  Countryman  —  You  intend  to  include  them? 

Mr.  Mereness  —  It  seems  to  me  the  language  includes  all  public 
officers.  A  judge  is  a  public  officer,  and  I  suppose  is  included. 

Mr.  Peck  —  I  would  like  to  inquire  whether  it  is  intended  to  oper- 
ate in  a  case  of  this  kind,  where  a  city  or  a  village  has  entered  into 
a  contract  with  a  man,  on  the  assumption  that  a  certain  excavation 
required,  for  instance,  will  all  be  of  earth,  and  it  turns  out  on  the 
excavation  being  begun,  that  it  is  of  rock.  Now,  would  it  be  pos- 
sible, if  this  amendment  were  adopted,  to  pay  that  man  extra  com- 
pensation for  the  extra  work? 

Mr.  Mereness  —  In  answer  to  that  I  have  only  this  to  say;  the 
present  Constitution  contains  all  of  this  amendment,  I  think,  except 
the  final  clause.  The  present  provision  is  that  the  Legislature  shall 
not,  nor  shall  the  common  council  of  any  city,  nor  any  board  of 
supervisors,  grant  any  extra  compensation  to  any  public  officer, 
servant,  agent  or  contractor.  Mr.  Chairman,  that  provision  has 
been  in  the  Constitution  of  the  State  of  New  York  for  a  great  many 
years,  and  I  believe  that  it  is  in  the  Constitution  of  every  other 
State  in  this  Union. 

Mr.  Peck  —  Mr.  Chairman,  the  present  provision  of  the  Consti- 
tution refers  only  to  the  Legislature  of  the  State,  or  the  common 
council  of  a  city,  or  the  board  of  supervisors,  which  have  compara- 
tively little  of  that  kind  of  work  to  do.  In  those  cases  they  have 
engineering  surveys  made  in  advance,  or  the  contract  is  limited  to 
different  kinds  of  excavation  in  the  contract  itself,  so  much  for 
earth  excavation,  so  much  for  rock;  and  it  makes  a  very  difficult 
kind  of  contract  to  be  drawn  for  small  civil  divisions,  and  not  likely 
to  be  provided  for  in  advance,  these  difficulties  not  being  likely  to 
be  anticipated.  It  seems  to  me  that  the  civil  divisions,  to  which  it 
is  to  apply,  ought  to  be  confined  to  incorporated  divisions,  where 
these  things  can  be  more  carefully  attended  to  than  they  can,  for 
instance,  in  school  districts. 

Mr.  Mereness  —  Mr.  Chairman,  in  answer  to  what  Mr.  Peck  has 
said,  a  school  division  is  not  a  civil  division  of  the  State.  In  answer 
to  an  inquiry  made  on  the  former  occasion,  by  the  gentleman  from 
Seneca  (Mr.  Hawley),  the  civil  divisions  of  the  State,  as  defined 
by  the  Revised  Statutes,  are  the  several  counties  of  the  State,  the 
Senate  Districts  of  the  State,  the  Congressional  Districts  of  the  State, 
the  several  towns  and  villages  and  cities  of  the  State,  and  the 
Assembly  and  Judicial  Districts.  Those  are  the  only  civil  divisions 
of  the  State,  set  forth  in  the  Revised  Statutes. 

Mr.  Choate  —  Mr.  Chairman,  I  hope  that  this  amendment  offered 


August  17.]  CONSTITUTIONAL  CONVENTION.  709 

by  Mr.  Doty,  and  the  provision  to  which  it  is  offered  as  an  amend- 
ment, will  be  voted  down.  It  seems  to  me  that  the  proposition  con- 
tained in  this  amendment  is  a  most  unwarrantable  interference,  not 
only  with  the  reasonable  power  of  the  Legislature,  but  with  the 
reasonable  power  of  each  municipality,  town,  village  and  city,  to 
manage  its  own  affairs  of  detailed  economy.  This  subject  came 
before  the  Convention  of  1867,  and  instead  of  enlarging  this  restric- 
tion, as  is  here  proposed,  the  result  of  their  careful  and  prolonged 
deliberations  was  to  reduce  it.  The  Constitution  as  it  then  stood, 
as  it  now  stands,  merely  prohibited  the  Legislature  and  the  common 
councils  of  cities  and  boards  of  supervisors  from  granting  extra 
compensation  to  any  public  officer,  servant,  agent  or  contractor, 
and  that  was  held  by  the  Court  of  Appeals  to  be  prohibiting  them 
from  giving  away  money  after  the  work  had  been  done,  and  not  to 
an  increase  of  salary  for  services  to  be  performed.  Now,  the  Con- 
vention of  1867  reduced  it  to  this:  "  The  Legislature  shall  not  grant 
any  extra  compensation  to  any  public  officer,  servant,  agent  or  con- 
tractor, nor  increase  or  diminish  any  compensation,  except  that  of 
judicial  officers,  during  their  term  of  service."  They  proposed  to 
leave  out  entirely  the  interference  with  the  actions  of  common  coun- 
cils of  cities  and  boards  of  supervisors,  and  took  care  especially  to 
provide  that  it  should  not  apply  to  the  salaries  of  judicial  officers. 
Now,  Mr.  Chairman,  my  proposition  is,  that  in  the  affairs  of  a  city, 
of  a  county,  of  a  town  or  of  a  village,  the  people  are  competent  to 
decide  for  themselves  on  such  a  trifling  matter  as  this,  and  that  it 
ought  to  be  left  to  the  Legislature  to  say  whether  a  salary  of  a  State 
officer  for  services  yet  to  be  performed  may  not  be  increased.  It  is  not 
only  easy  to  be  imagined,  but  it  has  often,  in  fact,  occurred,  that 
unexpected  duties  come  upon  officers  after  their  salaries  have  been 
fixed,  not  only  officers  of  the  State,  but  officers  of  the  cities,  towns 
and  villages,  and  it  will  interfere  and  prevent  the  employer,  who  is 
the  9nly  competent  party  to  judge,  from  determining  whether,  in 
case,  if  you  please,  a  district  attorney  finds  himself  by  some  sudden 
commotion,  charged  with  ten  times  the  amount  of  duty  that  was 
expected  when  he  took  his  office  and  the  salary  was  fixed,  or  the 
officer  of  any  subordinate  division  of  the  State  finds  himself  in  any 
such  position,  it  is  not  in  the  power  of  his  employers  to  make  his 
compensation  adequate.  I  hope,  for  one,  that  in  respect  to  this  and 
all  other  amendments,  this  unwarranted,  unreasonable,  uncalled  for 
interference  with  the  Legislature  and  with  the  subdivisions  of  the 
State  in  matters  of  detailed  economy  will  not  be  encouraged.  Who 
finds  any  reported  grievance  here?  Who  says  that  the  power  left 
to  the  Legislature  and  the  subordinate  divisions  of  the  State,  by  the 


7io  REVISED  RECORD.  [Friday, 

Constitution  as  it  now  stands,  has  ever  been  abused?     I  trust,  lor 
one,  this  whole  matter  will  be  voted  down. 

Mr.  Doty  —  Mr.  Chairman,  I  sincerely  hope  that  I  shall  not  be 
misunderstood  on  this  proposition.  I  intended  that  my  remarks 
should  apply  with  quite  as  much  force  to  the  amendment  that  I  pro- 
posed as  to  the  main  proposition.  The  amendment  which  I  proposed 
was  presented  hastily,  and  without  consideration,  hoping  to  neutral- 
ize, to  some  extent  at  least,  the  effect  of  the  main  proposition.  I  am 
just  as  much  opposed  to  the  proposition  as  amended  as  I  am  to  the 
original  proposition,  and,  if  it  be  proper,  I  desire  now  to  withdraw 
my  amendment,  so  that  I  shall  not  be  at  all  misunderstood,  or  that 
my  position  shall  not  be  at  all  ambiguous  upon  this  question. 

The  Chairman  —  Mr.  Doty  desires  to  withdraw  his  proposed 
amendment.  I  suppose  it  is  before  the  committee.  If  there  be 
objection,  the  Chair  will  hold  that  he  has  no  right  to  withdraw  it, 
otherwise  it  will  be  permitted. 

Mr.  Doty's  amendment  then  is  withdrawn.  The  question  then 
occurs  upon  the  amendment  offered  by  Mr.  Spencer.  The  Secre- 
tary will  read  the  amendment. 

The  Secretary  read  the  amendment  as  follows: 
By  Mr.  Spencer  —  Insert  in  line  3,  after  the  word  "  salary,"  the 
words  "  or  compensation." 

The  Chairman  —  That  is  the  question  now  before  the  committee. 

Mr.  A.  H.  Green  —  Mr.  Chairman,  I  desire  to  offer  an  amend- 
ment to  this  provision  to  this  effect :  Adding  after  the  word  "  line," 
"  nor  the  board  of  estimate  and  apportionment  of  the  city  of  New 
York."  We  have  practically  no  legislative  bodies  there.  Our 
esteemed  President  has  said  that  he  hoped  that  this  amendment 
would  be  voted  down,  for  the  reason  that  no  abuses  have  existed. 
I  think  his  knowledge  of  abuses  must  be  very  limited.  Every  .man 
knows  what  the  abuses  have  been  that  have  been  created  under  the 
existing  provisions ;  and  so  I  hope,  for  one,  that  instead  of  its  being 
voted  down,  it  will  be  voted  up.  It  ought  to  be  voted  up.  The 
interference  with  these  compensations,  the  increase  of  pay,  on  the 
part  of  the  Legislature,  and  on  the  part  of  the  civil  divisions,  are 
numerous,  and  ought  to  be  corrected  and  prevented.  This  amend- 
ment should  be  perfected  so  as  to  prevent  the  difficulties  arising  as 
suggested  by  my  friend  at  the  left  (Mr.  Doty),  and  with  proper 
amendments,  which  I  hope  will  be  proposed  and  accepted.  I  think 
it  is  a  wholesome  thing.  It  is  the  easiest  thing  in  the  world  to 
get  rid  of  doing  a  thing  here  which  will  be  of  great  public  benefit 


August  17.]  CONSTITUTIONAL  CONVENTION.  711 

and  public  economy  and  insure  it,  instead  of  the  riot  that  has  run 
in  increasing  the  compensation  of  officers  here.  It  is  in  the  interest 
of  economy  and  in  the  interest  of  the  people  of  the  State  that  it 
shall  be  done,  and  I  hope  it  will  be  done. 

The  Chairman  —  The  gentleman  may  send  his  proposed  amend- 
ment to  the  desk. 

Mr.  Peck  —  Mr.  Chairman,  there  is  a  proposition  very  likely  to 
be  reported  to  this  Convention  which  will  increase  the  work  of  the 
Secretary  of  State  enormously,  by  requiring  him  to  superintend 
the  taking  of  enumerations  of  the  inhabitants  of  the  State,  instead 
of  leaving  it  to  be  done  under  the  direction  of  the  Legislature.  Now,  if 
that  should  be  done,  and  that  enormous  amount  of  work  should  be 
imposed  upon  him,  and  this  amendment  should  be  adopted,  you 
not  only  could  not  increase  his  salary  for  doing  it,  but  could  not 
increase  his  compensation  in  any  way.  It  seems  to  me  that  this 
amendment  goes  too  far,  and  I  heartily  concur  in  the  suggestion 
of  the  President,  if  he  will  allow  me,  and  in  the  remarks  which  he 
has  made  on  this  subject.  It  is  a  matter  of  administrative  detail 
which  can  safely  be  left  to  the  officers  who  have  to  respond  annually 
or  biennially  to  the  people  who  have  elected  them. 

There  is  another  matter  to  which  I  am  requested  to  call  the  atten- 
tion of  the  Convention,  and  that  is  that  the  surrogates  of  this  State 
have  had  their  duties  very  largely  increased  by  the  Legislature 
requiring  them  to  have  assessed  the  transfer  taxes  of  the  State. 
Now,  those  matters  were  not  in  contemplation  at  the  time  that 
they  were  elected.  They  were  not  in  contemplation  at  the  time 
that  those  gentlemen  accepted  the  duties  of  the  office  of  surrogate; 
and  is  it  right,  is  it  business-like,  is  it  honest,  that  the  people  of  this 
State  should  impose  those  additional  burdens,  and  at  the  same  time 
prohibit  themselves  and  all  the  counties  of  the  State  from  paying  for 
them?  I  think  that  this  is  a  mistake,  and  I  hope  that  the  original 
section,  instead  of  being  extended,  will  be  restricted,  as  was  done  by 
the  Convention  of  1867. 

Mr.  Woodward  —  Mr.  Chairman,  I  am  opposed  to  this  amend- 
ment in  the  way  it  reads  at  the  present  time,  for  the  reasons  given 
by  our  President.  I  was  elected,  just  before  the  war,  as  county 
treasurer.  I  held  that  office  two  terms.  My  salary  was  fixed  when 
I  was  first  elected.  Soon  after  the  war  broke  out  I  issued  half  a 
million  of  county  bonds  for  our  county.  I  had  the  preparation  of 
those  bonds,  the  signing  of  the  coupons,  the  signing  of  the  bonds, 
and  then  the  paying  out  of  those  bonds  to  the  supervisors  in  accord- 
ance with  their  votes.  I  had  to  take  charge  of  those  bonds  and 


7i2  REVISED  RECORD.  [Friday, 

keep  them  safely  after  they  were  executed.  They  were  also  signed 
by  the  chairman  of  the  board  of  supervisors.  Three-quarters  of 
those  bonds  were  paid  before  I  left  the  office  as  county  treasurer. 
That  was  a  duty  that  was  not  expected  to  be  thrust  upon  the  county 
treasurer  when  he  was  elected.  That  was  a  duty  that  did  not  belong 
to  the  county  treasurer's  office  when  the  salary  was  fixed.  The 
salary  was  fixed  at  a  very  moderate  sum,  and  the  supervisors  after- 
wards saw  fit  to  allow  me  an  additional  compensation.  Now,  this 
amendment  would  cut  off  any  such  case  as  that.  An  officer  being 
chosen  and  his  salary  fixed,  there  might  be  thrust  upon  him  four 
times  the  duty  that  he  would  ordinarily  have  to  discharge  in  his 
office,  and,  consequently,  if  he  could  receive  no  further  compensa- 
tion than  the  salary  fixed,  when  it  was  supposed  he  would  not 
have  these  things  to  perform,  there  would  be  great  injustice  done 
to  the  officer.  For  that  reason,  I  think  this  amendment  should  not 
be  passed,  unless  the  clause  should  be  inserted  that  such  salary 
shall  not  be  increased  unless  there  are  other  duties  and  larger  duties 
thrust  upon  the  officers,  as  is  the  case  in  many  counties.  In  the 
instances  I  have  cited,  the  various  counties  allowed  the  treasurers 
for  the  issuing  of  these  bonds.  In  some  counties  he  was  allowed 
a  thousand  dollars,  and,  I  think,  in  some  counties,  two  thousand 
dollars.  I  was  allowed  the  sum  of  five  hundred  dollars,  which  did 
not  half  pay  for  the  labor  I  had  to  perform,  but,  being  a  little  mod- 
est, I  did  not  ask  the  supervisors  to  give  me  a  large  compensation. 
I  mention  this  as  an  argument,  being  an  example  within  my  own 
knowledge  and  within  my  own  experience,  and  I  consequently  bring 
it  forward  as  an  argument  against  this  proposition.  (Applause.) 

Mr.  A.  H.  Green  —  Mr.  Chairman,  it  appears  to  me  that  if  an 
official  takes  his  position  he  is  bound  to  serve  for  the  compensation 
fixed  when  he  took  it.  That  is  a  bargain,  and  there  is  no  wrong  in 
it  whatever.  Now,  what  my  friend  suggests  as  to  the  Secretary  of 
State ;  I  dare  say  he  is  a  very  respectable,  nice  gentleman,  but  those 
duties  will  be  performed  by  his  subordinates.  He  will  have  a 
coterie  around  him  that  will  aid  him  very  much,  and,  I  think,  his 
duties  will  not  be  very  much  increased  by  it.  It  has  been  said  here 
by  our  President  that  there  is  no  occasion  for  this  sort  of  thing.  I 
will  call  attention  to  one  or  two  instances  that  occur  to  me.  One 
is  this:  The  commissioners  of  taxes  and  assessments  had  their  sala- 
ries largely  increased  last  year.  The  salaries  of  the  police  of  New 
York  last  year,  against  the  protest  of  the  mayor,  against  the  pro- 
test of  the  board  of  estimate  and  apportionment,  and  of  the  local 
authorities  of  New  York,  were  increased  in  the  Legislature  to  an 
amount  that  added  to  the  tax  levy  of  New  York  nearly  three-quar- 


August  17.]  CONSTITUTIONAL  CONVENTION.  713 

ters  of  a  million  of  money.  This  was  against  the  direct  protest  of 
the  locality.  Now,  will  anybody  say  to  me  that  this  thing  ought 
not  to  take  some  shape  in  the  Constitution  so  that  we  could  prevent 
these  things?  Why,  a  man  who  says  that  is  ignorant  of  what  is 
going  on  in  the  Legislature,  and  what  is  going  on  in  the  municipali- 
ties. I  think,  sir,  some  amendment,  when  it  is  perfected  here,  should 
pass;  it  is  a  proper  thing  for  the  Constitution.  It  is  the  easiest 
thing  to  get  rid  of  anything  the  gentlemen  do  not  want  here,  by 
saying  that  it  is  legislative,  that  it  ought  to  go  to  the  Legislature, 
and  not  be  put  into  the  Constitution.  We  were  sent  here  to  put 
things  into  the  Constitution,  to  provide  for  exigencies  that  have  not 
been  provided  for.  I  notice  how  easy  it  is  to  say:  ''Well,  we  had 
better  keep  the  old  Constitution  as  it  is,  not  tinker  with  it  much, 
let  it  alone;  we  did  not  come  here  to  do  much  of  anything;  leave  it 
to  the  Legislature."  It  is  no  credit  to  the  intelligence  of  this  Con- 
vention that  they  have  not  invention  enough  to  put  these  amend- 
ments in  form  that  will  do  no  injury  and  be  of  very  great  benefit. 
It  is  easy,  I  say,  to  get  rid  of  these  things  if  we  do  not  want  them, 
in  this  way. 

Mr.  Vedder  —  Mr.  Chairman,  this  proposition  was  referred  to 
the  Committee  on  Legislative  Powers  and  Duties,  which  committee 
reported  it  favorably,  with  some  amendments.  Now,  we  are  only 
following  out  to  its  legitimate  conclusion,  the  Constitution  as 
it  is  at  present,  which  provides  in  section  18  of  article  3,  as  follows: 
"The  Legislature  shall  not  pass  a  private  or  local  bill  *  *  * 
creating,  increasing  or  decreasing  fees,  percentage  or  allowances  of 
public  officers  during  the  term  for  which  said  officers  are  elected 
or  appointed."  It  was  supposed  when  that  constitutional  provision 
became  a  part  of  the  organic  law,  that  it  would  prevent  the  increase 
of  salaries  of  officers  during  their  official  term.  But  so  much  was 
it  in  doubt  that  cases  thereunder  went  to  the  Court  of  Appeals 
before  the  law  upon  this  question  was  settled,  and  the  Court  of 
Appeals  decided  that  those  grants,  creating,  increasing  or  decreas- 
ing fees,  percentages  or  allowances  of  public  officers,  during  the 
terms  for  which  such  officers  were  elected,  or  appointed,  did  not 
apply  to  salaries.  This  question  has  not,  therefore,  been  left 
entirely  to  the  Legislature.  In  other  places,  in  article  6,  relative  to 
the  compensation  of  judges  and  justices  of  the  Supreme  Court,  the 
Constitution  used  to  say  that  their  salaries  should  not  be  increased 
or  decreased  during  the  term  for  which  they  were  elected,  and  the 
article,  which  was  amended  in  1874,  simply  prescribed  that  their 
salaries  should  not  be  decreased  during  their  term,  so  that  the 
framers  of  that  provision  and  the  framers  of  other  provisions  of  1874 


REVISED  RECORD.  [Friday, 

and  1846,  believed  that  the  matter  ought  not  to  be  left  entirely  with 
the  Legislature,  either  of  the  State  or  localities.  There  is  no  reason 
for  the  passage,  therefore,  of  this  present  amendment.  In  many 
parts  of  the  State,  as  soon  as  an  officer  is  elected  a  county  judge,  a 
surrogate,  a  district  attorney,  a  county  treasurer,  by  reason  of  the 
power  which  that  election  gives  him,  he  begins  in  many  cases  to 
ask  to  have  his  salary  increased  for  the  term  during  which  he 
was  elected.  Sometimes,  without  that,  the  people  may  see  fit  to 
increase  the  salaries;  but  it  is  endeavoring  to  shut  the  door  to  what 
is  considered  an  evil  to-day,  and  to  say  conclusively  that  here  is  a 
term  of  office,  to  which  office  many  applicants,  and  worthy  appli- 
cants, are  aspiring,  and  that  they  ought  to  accept  that  office  for  the 
whole  term  for  the  fees,  perquisites,  salary  or  allowances  which 
the  law  has  affixed  to  it  before  they  accept  it.  That  door 
is  now  open,  and  we  believe  that  it  ought  to  be  shut  by  a 
constitutional  provision.  The  very  article  which  he  amends,  or 
attempts  to  amend,  section  24  of  article  3,  reads  that :  "  The 
Legislature  shall  not,  nor  shall  the  common  council  of  any 
city,  nor  any  board  of  supervisors,  grant  any  extra  compensa- 
tion to  any  public  officer,  servant,  agent  or  contractor."  That 
is  embedded  and  anchored  in  the  Constitution  to-day.  It  would 
seem  to  be  broad  enough  to  include  a  salary,  for  what  is 
an  increase  of  salary  but  an  extra  compensation,  for  which  the 
official  was  elected?  Simply  because  the  word  salary  was  not 
included,  although  other  terms  which  wrere  equivalent  to  that,  for 
each  increase,  whether  of  salary  or  extra  compensation,  given  by 
the  Legislature,  or  the  common  council  of  a  city,  or  a  board  of  super- 
visors, takes  that  amount  out  of  the  taxpayers  of  the  State,  out  of 
the  taxpayers  of  the  locality,  and  it  was  that  that  the  fathers  of  the 
present  Constitution  desired  to  prevent.  I  think  the  provision  is  a 
good  one.  A  man  ought  to  perform  his  contract.  It  is  a  contract. 
Here  is  an  office,  and  to  it  is  attached  a  certain  salary.  The  man 
asks  for  it,  he  seeks  it,  and  has  made  a  contract  thereby  with  the 
people  who  elected  him  that  he  will  serve  that  term  for  the  salary 
or  allowance  which  is  affixed  to  that  office.  He  ought  to  be  pre- 
vented from  going  to  the  people  and  asking  for  more.  The  dis- 
tinguished President  of  this  Convention  says  that  if  an  extra 
amount  of  work  should  be  imposed  upon  him  within  his  term,  there 
ought  not  to  be  any  bar  against  the  people  paying  him  for  that. 

(The  President  here  resumed  the  chair.) 

The  President  —  Mr.  Vedder  will  resume  his  remarks  after  the 
recess.     The  Convention  now  take  their  recess  until  three  o'clock. 


August  17.]  CONSTITUTIONAL  CONVENTION.  715 

AFTERNOON   SESSION. 
Friday  Afternoon,  August  17,  1894. 

The  Constitutional  Convention  of  the  State  of  New  York  met  in 
the  Assembly  Chamber,  in  the  Capitol,  at  Albany,  N.  Y.,  August 
17,  1894,  at  three  o'clock  P.  M. 

President  Choate  called  the  Convention  to  order. 

Mr.  Cookinham  took  the  chair  in  Committee  of  the  Whole,  on 
the  matter  pending  at  the  time  recess  was  taken. 

The  Chairman  —  The  Convention  is  in  Committee  of  the  Whole 
upon  consideration  of  the  amendment  offered  by  Mr.  Green,  of  New 
York,  to  the  amendment  of  Mr.  Mereness.  What  is  the  pleasure  of 
the  Convention? 

Mr.  Hill  —  Mr.  Chairman,  may  we  have  the  amendment  read? 

The  Secretary  read  the  amendment  as  follows:  "  Insert  after  the 
word  '  State,'  in  line  four,  the  words,  '  nor  the  board  of  estimate  and 
apportionment  of  the  city  of  New  York.' " 

Mr.  Vedder  —  Mr.  Chairman,  I  do  not  know  exactly  where  I  left 
off  when  I  was  left  in  mid-air  by  the  gavel  of  the  President,  whether 
I  was  going  up  or  coming  down. 

Mr.  Cookinham  —  The  Chair  is  unable  to  inform  the  gentleman. 

Mr.  Vedder  —  I  have  only  this  to  say  in  addition  to  what  I  have 
already  said,  that  another  reason  which  I,  perhaps,  did  not  advance 
why  I  suggest  this  amendment,  is,  that  it  would  save  the  people  a 
great  deal  of  annoyance.  There  being  no  provision  against  it,  no 
complaint  could  be  made  to-day  against  an  officer  who  was  in  office, 
seeking,  as  he  might,  to  have  his  salary  increased.  There  could  be 
nothing  possibly  said  against  an  officer  whose  salary  was  increased 
during  his  term  of  office,  but  it  would  save  the  Legislature  a  great 
deal  of  annoyance  if  this  provision  could  be  passed.  It  would  also 
save  the  local  legislature,  the  county  boards  of  supervisors,  a  great 
deal  of  annoyance,  in  regard  to  the  county  officers  seeking  to  have 
their  salaries  raised  during  their  term.  I  remember  a  few  years 
ago,  when  I  was  in  the  Senate,  that  some  county  judge  had  his 
salary  increased  during  the  term  for  which  he  was  elected,  and  that 
was  followed  immediately  by  ten  or  fifteen  bills  from  other  counties 
to  have  the  salaries  of  their  county  judges  increased,  and  for  no 
reason  except  that  they  said  the  other  county  judge,  who  did  not 
do  any  more  work  and  was  not  any  greater  man  than  they,  had  had 
his  salary  increased,  and,  therefore,  theirs  should  be  increased.  I 


7i6  REVISED  RECORD.  [Friday, 

remember,  also,  in  the  county  which  Mr.  McKinstry  so  grandly 
represents  on  this  floor  (applause),  the  surrogate  wanted  his  salary 
increased,  and  he  no  sooner  was  comfortably  seated  in  the  office 
than  he  began  a  campaign  upon  the  Legislature  of  the  State  to  have 
his  salary  increased,  and  for  months  petitions  were  flowing  in  an 
unending  stream  upon  the  Legislature  asking  that  his  salary  be 
increased,  and  another  stream,  a  little  larger,  of  remonstrances  were 
flowing  into  the  legislative  halls,  and  a  failure  was  had  — 

Mr.  Dickey  —  Mr.  Chairman,  I  would  like  to  ask  the  gentleman 
a  question,  whether  any  members  of  the  Senate  or  Assembly 
resigned  because  of  these  importunities? 

Mr.  Vedder  —  No,  nor  did  the  surrogate ;  but  members  of  the 
Senate  and  Assembly  felt  that  if  they  should  resign,  that  then  the 
wicked  would  cease  from  troubling,  and  the  weary  ones  be  at  rest. 
They  felt  that  way.  But  the  desire  to  hold  office  was  so  strong 
that  they  did  not  resign.  That  is  the  way  the  thing  works.  Now, 
I  suppose  they  builded  in  wisdom  better  than  they  knew  when  they 
put  into  the  Constitution  the  salary  of  the  Governor,  the  Lieutenant- 
Governor,  and  also  the  salaries  of  the  Senators  and  Members  of 
Assembly,  so  that  they  might  not  be  increased.  There  is  nothing 
in  the  Constitution,  as  I  now  remember,  prohibiting  the  increase  of 
the  salaries  except  this,  that  it  being  fixed  by  the  Constitution,  the 
Legislature  could  not  change  it.  So,  therefore,  the  Constitution 
does  not  say  in  terms  that  the  Legislature  may  not  fix  the  salaries 
of  Members  of  Assembly.  It  being  fixed  by  the  Constitution,  it  is 
beyond  the  power  of  change  by  the  Legislature.  That  is  why  the 
salaries  of  Senators  were  fixed,  and  that  is  why  the  salaries  of  other 
State  officers,  like  the  Governor,  who  might  have  an  influence  upon 
the  Legislature,  and  the  Lieutenant-Governor,  and  so  forth,  were 
fixed.  I  believe  it  to  be  a  wise  provision  and  ought  to  be  embodied 
in  the  Constitution.  The  sentiment,  the  intention,  is  there  in  the 
old  Constitution  to  include  salaries,  and,  as  I  said,  the  question  was 
so  close  that  no  one  was  satisfied  until  the  Court  of  Appeals  of  this 
State  pronounced  judgment  that  it  would  not  prevent  increase  of 
salaries  during  the  term.  I,  therefore,  Mr.  Chairman,  hope  that  the 
Committee  of  the  Whole  will  vote  in  favor  of  this  proposition,  which, 
I  believe,  is  a  wise  and  patriotic  one. 

Mr.  Kerwin  —  Mr.  Chairman,  I  rise  to  a  point  of  order. 

The  Chairman  —  The  gentleman  will  state  his  point  of  order. 

Mr.  Kerwin  —  Under  rule  28,  Mr.  Chairman,  if,  at  any  time,  in 
Committee  of  the  Whole,  it  be  ascertained  that  there  is  no  quorum 
present,  the  Chairman  shall  immediately  report  that  fact  to  the 


August  17.]  CONSTITUTIONAL  CONVENTION.  717 

Convention.  This  is  the  first  Friday  that  we  have  been  in  session 
under  the  new  rule.  I  have  made  a  count  of  the  House,  and  I  make 
the  point  that  there  is  no  quorum  present. 

The  Secretary  called  the  roll  and  stated  that  ninety-two  members 
were  present. 

The  Chairman  recognized  Mr.  Xicoll. 

Mr.  Doty  —  Mr.  Chairman,  I  will  ask  Mr.  Nicoll  to  give  way.  I 
desire  to  ask  a  question. 

Mr.  Nicoll  yielded  the  floor. 

Mr.  Doty  —  The  gentleman  has  expressed  the  opinion  that  there 
is  a  contract  relation  between  a  public  officer  and  the  authorities 
employing  him.  I  ask  him  if  it  is  not  a  fair,  legal  and  business 
proposition  that  that  relation  should  be  mutual,  and  that  if  there 
are  duties  imposed  upon  any  officer  largely  in  excess  of  those  which 
pertained  to  the  office  when  he  entered  it,  he  should  not,  in  the  same 
proportion,  be  entitled  to  additional  compensation? 

Mr.  Vedder  —  The  question  was  asked  of  me,  I  believe.  I  would 
simply  say  in  reply  to  that,  that  if  the  officeholder  would  make  a 
contract  with  the  people,  that  if  his  duties  were  more  than  he 
expected,  he  might  have  an  increase  of  salary,  and  if  they  were  less 
than  the  people  expected  he  would  perform  at  the  time,  he  should 
have  it  decreased,  then  there  would  be  a  mutuality  of  contract. 
Unless  that  were  done,  I  do  not  think  that  the  gentleman's  question 
has  any  pertinency  whatever.  The  point  that  I  was  making  was  this : 
whether  contract  or  not  —  it  may  not  be  a  contract  that  would  be 
enforceable  in  law,  but  it  is  a  sort  of  an  understanding  that  he  has 
with  the  people.  He  has  taken  the  people  into  his  confidence  in 
asking  for  the  office,  when  he  asks  the  caucus  to  send  delegates  to 
the  county  convention  for  him,  when  he  asks  the  county  convention, 
which  represents  the  people  composing  his  party,  to  nominate  him 
to  that  office,  he  does  it  with  the  implied  understanding  that  during 
his  term  he  will  not  ask  for  any  increase  of  salary;  that  he  takes  the 
office  with  its  emoluments  and  its  honors,  just  as  it  was  when  he 
was  asking  for  it.  That  is  what  it  means.  It  is  not  a  mutual  contract 
that  is  put  on  paper,  but  is,  in  the  way  of  confidence,  a  con- 
tract which  rests  in  something  higher  than  mere  paper  or  an  instru- 
ment in  writing,  a  contract  whose  obligations  repose  in  the  highest 
kind  of  honor  and  confidence  in  dealing  with  the  people  in  that 
behalf.  That  is  what  I  mean  by  that. 

Mr.  Nicoll  —  This  amendment  proposed  is  a  much  more  import- 
ant matter,  in  my  judgment,  than  has  been  regarded  up  to  this  point 
by  the  Convention.  It  relates  to  thousands  and  thousands  and 


7i8  REVISED  RECORD.  [Friday, 

thousands  of  public  officers  in  this  State,  drawing  millions  and  mil- 
lions and  millions  of  dollars  from  the  public  treasury,  either  from 
the  treasury  of  the  State  or  from  the  treasury  of  some  of  the  civil 
divisions  of  the  State.  As  the  Constitution  now  stands  we  have 
three  provisions  relating  to  the  question  of  salaries,  and  their 
increase  or  diminution  during  the  term  of  office.  Section  9  of 
article  10  of  the  Constitution  provides  that  "  no  officer  whose  salary 
is  fixed  by  the  Constitution  shall  receive  any  additional  compensa- 
tion. Each  of  the  other  State  officers  named  in  the  Constitution 
shall,  during  his  term  of  office,  receive  a  compensation  to  be  fixed 
by  law  "which  shall  not  be  increased  or  diminished  during  the  term 
for  which  he  shall  have  been  elected  or  appointed,  nor  shall  he 
receive  to  his  use,  any  fees  or  perquisites  of  office  or  other  compen- 
sation." So  that  the  principle  of  this  amendment  is  now  embodied 
in  the  Constitution,  so  far  as  State  officers  are  concerned,  and  as  to 
all  officers  named  in  the  Constitution.  Of  course,  that  constitutes 
a  very  small  class  of  officers  in  this  State,  and  this  provision  of  the 
Constitution  relates  to  a  comparatively  few  men.  We  have  another 
provision  of  the  Constitution,  found  in  article  3,  section  24,  which 
says:  "The  Legislature  shall  not,  nor  shall  the  common  council  of 
any  city,  nor  any  board  of  supervisors,  grant  any  extra  compensa- 
tion to  any  public  officer,  servant,  agent  or  contractor."  That,  of 
course,  relates  only  to  compensation  awarded  after  services 
have  been  performed,  and  not  to  the  increase  of  salaries  in  future,  or 
during  the  term  of  the  incumbent.  That,  as  I  understand  it,  from 
decisions  of  the  courts,  is  a  prohibition  against  giving  a  public  offi- 
cer, even  if  he  has  rendered  some  pecuniarily  valuable  service,  any 
extra  compensation.  We  have  a  third  provision  in  article  3,  section 
18:  "  The  Legislature  shall  not  pass  a  private  or  local  bill  in  any  of 
the  following  cases :  creating,  increasing  or  decreasing  fees,  percent- 
age or  allowances  of  public  officers  during  the  term  for  which  said 
officers  are  elected  or  appointed."  And  those  three  provisions  of 
the  Constitution  are  the  whole  body  of  law  upon  this  subject.  Now, 
all  of  them  have  been  interpreted  by  the  courts  of  this  State,  and 
the  limit  of  their  application  has  been  settled  and  defined  for  a 
number  of  years ;  and  as  they  have  been  finally  interpreted  I  under- 
stand the  position  of  the  law  to  be  as  follows:  These  things  the 
Legislature  cannot  do  at  the  present  time;  they  cannot  increase  or 
diminish  the  compensation  of  any  of  the  officers  named  in  the  Con- 
stitution. That  is  one.  Second,  they  cannot,  by  special  laws, 
increase  or  diminish  the  compensation  of  officers  who  are  compen- 
sated by  fees,  allowances  or  percentages.  And  that  is  the  sum 
total  of  the  present  prohibition  to  the  Legislature  against  the 


August  17.]  CONSTITUTIONAL  CONVENTION.  719 

increase  of  salaries  during  the  term  of  office,  except  one;  and  they 
cannot  grant  extra  compensation,  as  I  have  already  said,  for  work 
performed.  Now,  what  they  can  do  at  the  present  time  is  this: 
They  may,  by  general  laws,  increase  or  diminish  the  compensation 
of  officers  who  are  rewarded  for  their  services  by  fees,  allowances 
or  percentages,  and  they  may,  also,  at  the  present  time,  by  special 
laws,  increase  the  salaries  of  officers  in  any  of  the  civil  divisions  of 
the  State.  The  simple  statement  of  those  propositions,  seems  to 
me,  to  discover  an  anomaly  in  the  present  organic  law.  Why  should 
the  Legislature  be  prohibited  from  increasing  or  diminishing  the 
salaries  of  officers  named  in  the  Constitution?  Why  should  they 
be  prohibited  from  passing  special  laws  increasing  fees  of  officers 
who  are  rewarded  by  fees,  percentages  and  other  perquisites,  and 
why  should  they  be  permitted  ad  libitum  to  increase  the  compensa- 
tion of  those  public  officers,  constituting  by  far  the  greatest  num- 
ber, who  are  rewarded  by  a  fixed  salary?  Take,  for  instance,  the 
city  of  New  York.  We  have  a  district  attorney  holding  office  for 
three  years.  Under  the  Constitution  his  salary  may  not  be  increased 
or  diminished.  We  have  a  commissioner  of  public  works,  exercis- 
ing vast  power  over  all  the  public  works  of  the  city,  deriving  a 
salary  which  may  be  doubled  at  any  time  if  he  persuades  the  Legisla- 
ture to  increase  it.  Now,  that  is  the  evil,  that  is  the  anomaly 
which  this  amendment  proposes  to  cure.  In  the  city  of  New  York, 
for  instance,  we  have  three  methods  of  providing  for  the  salaries  of 
public  officers.  Some  have  their  salaries  fixed  in  the  act  of  the 
Legislature  creating  them,  such  as  the  police  justices,  the  mayor 
himself,  the  common  council,  the  great  heads  of  departments,  police 
officers,  heads  of  the  fire  department  and  others.  We  have  also  a 
class  of  officers,  subordinate  officers,  whose  salaries  are  fixed  by  the 
boards  of  assessment  and  apportionment,  and  we  have  a  third  class 
of  officers  whose  salaries  are  fixed  by  the  common  council.  As  to 
all  those  three  classes  of  officers,  drawing  ten  or  fifteen  millions  of 
dollars  out  of  the  city  treasury  every  year,  there  is  no  constitutional 
prohibition  against  the  Legislature  increasing  their  compensation  by 
special  laws;  and  the  same  thing  which  exists  in  the  city  of  New 
York  is  found,  I  have  no  doubt,  in  the  other  cities  of  this  State. 
Now,  the  absence  of  that  prohibition,  the  same  terms  directed 
against  the  increase  or  diminution  of  the  salaries  of  State  officers,  or 
officers  named  in  the  Constitution,  constitutes  one  of  the  very 
gravest  abuses  which  exist  in  this  State,  and  the  cities  thereof,  at 
the  present  day.  Not  a  Legislature  convenes  in  Albany  to  which 
hundreds  and  hundreds  of  applications  are  not  made  at  every  session 
for  the  increasing  of  salaries.  The  convening  of  the  Legislature  is 


720  REVISED  RECORD.  [Friday, 

eagerly  awaited  for  the  purpose  of  presenting  schemes  for  increasing 
the  salaries  of  these  various  classes  of  officers.  Bargains  are  made, 
political  engagements  are  entered  into,  deals  are  contracted,  upon 
the  very  faith  of  promises  to  induce  or  persuade  the  Legislature  to 
increase  salaries  during  the  term,  and  not  only  is  the  Legislature 
importuned  in  this  way,  but  the  same  kind  of  application  is  made  to 
the  common  council  and  to  the  board  of  estimate  and  apportionment 
in  the  various  cities  of  the  State.  The  slightest  reflection  will  recall 
to  members  of  this  Convention  the  fact  that  in  the  various  cities  of 
this  State  every  year  application  is  made  by  various  officers  for  an 
increase  of  their  salaries.  One  of  the  most  difficult  things  those 
boards  who  have  that  power  in  charge  have  to  do  is  to  resist  and 
stem  the  tide  of  these  applications.  Therefore,  I  am  in  favor  of  this 
amendment,  with  some  slight  changes.  I  think  that  instead  of 
saying,  "  Neither  the  Legislature  nor  the  legislative  department  or 
auditing  board  of  any  civil  division  of  the  State,"  it  would  be  better 
to  say,  "  Neither  the  Legislature  nor  any  department  or  board  which 
exercises  legislative  or  auditing  functions  in  any  of  the  civil  divis- 
ions of  the  State."  I  make  that  amendment. 

Mr.  Mereness  has  suggested  that  it  would  accomplish  the  same 
purpose  to  say,  "  Neither  the  legislative  nor  any  other  board."  I 
make  that  suggestion  because  the  board  of  estimate  and  apportion- 
ment in  the  city  of  New  York  is  not  a  legislative  department,  nor 
is  it  an  auditing  board.  It  is  really  an  executive  board,  exercising 
legislative  functions.  And  as  that  is  one  of  the  boards  to  which 
most  of  the  applications  are  made,  I  think  we  should  make  it  clear 
that  it  is  covered  by  this  article.  It  also  seems  to  me  only  reason- 
able to  conform  this  article  as  much  as  possible  to  the  present  pro- 
vision of  the  Constitution  relating  to  State  officers.  That  provides 
that  salaries  shall  not  be  increased  or  diminished  during  the  term 
of  office  of  the  incumbent;  and  I  have  to  suggest,  therefore,  that  we 
amend  this  proposal  by  inserting  after  the  word  "  increased,"  on 
the  seventh  line,  the  words  "  or  diminished." 

Mr.  Mereness  —  If  I  may  be  allowed  to  explain,  that  was  in  the 
original  proposition,  to  increase  or  diminish.  I  think  that  that 
ought  to  be  in,  but  I  do  not  wish  to  antagonize  the  report  of  the 
committee. 

The  Chairman  —  Does  the  Chair  understand  Mr.  Nicoll  to  move 
that  as  an  amendment? 

Mr.  Nicoll  —  I  understand  it  is  moved  as  an  amendment. 

The  Chairman  —  There  are  two  amendments  pending  at  present. 

Mr.  Nicoll — Well,  then,  I  will  have  to  wait  until  those  are  disposed 


August  17.]  CONSTITUTIONAL  CONVENTION.  721 

of.  Now,  that  is  all  I  wish  to  say  upon  the  subject.  It  seems  to  me 
one  of  very  serious  consequences.  It  has  been  said  that  there  is  no 
evil  existing.  Of  course  that  depends  altogether  upon  what  you 
experience.  From  what  I  mys*elf  have  seen,  from  the  various  plans 
which  I  have  heard  suggested  for  the  increase  of  salaries,  the  numer- 
ous applications  I  have  heard  made  and  have  heard  resisted  by  the 
present  board  of  estimate  and  apportionment  in  New  York  city,  I 
have  no  hesitation  in  saying,  both  as  regards  the  Legislature  and 
as  regards  the  common  councils  in  cities,  that  this  is  one  of  the 
most  serious  evils  with  which  we  are  confronted  in  this  State.  The 
Legislature  ought  not  to  have  this  power.  There  is  no  excuse  for 
giving  the  Legislature  the  power  to  increase  or  diminish  the  sal- 
aries of  these  officers.  There  is  no  distinction  to  be  made  in  the 
principle  between  the  comparatively  few  officers  in  this  State  exer- 
cising State  functions,  and  the  thousands  and  thousands  of  officers 
who  are  exercising  other  functions  in  the  civil  divisions  of  the  State. 
I  hope  that  this  amendment,  in  some  such  form  .as  has  been  pro- 
posed, will  be  adopted  by  this  committee. 

Mr.  M.  E.  Lewis  —  Mr.  Chairman,  I  quite  agree  with  the  senti- 
ments expressed  by  the  gentleman  from  New  York,  Mr.  Nicoll,  in 
reference  to  this  proposition.  Experience  of  several  years  in  muni- 
cipal affairs  in  the  city  of  Rochester,  one  of  the  large  cities  of  the 
State,  has  impressed  upon  me  the  advisability  of  incorporating  in 
the  Constitution  a  provision  similar  in  terms  to  this  provision. 
Under  the  charter  of  the  city -of  Rochester,  the  salaries  of  all  muni- 
cipal officers  are  fixed  by  the  common  council  between  a  maximum 
and  a  minimum  limit.  No  sooner  is  a  public  official  installed  in  his 
office  than  he  begins  to  lobby  with  the  members  of  the  common 
council  for  an ''increase  of  his  salary;  that  is,  an  increase  over  the 
salary  of  his  predecessor.  One  of  the  chief  duties  of  the  common 
council  of  the  city  of  Rochester  has  been  to  resist  the  importunities 
of  public  ofecials  seeking  an  increase  in  their  salaries.  I  am  not 
prepared  to  say  that  the  article,  as  reported  by  the  committee,  is  in 
terms  perfect.  I  have  not  yet  given  it  the  attention  which  perhaps 
the  subject  deserves,  but  I  agree  heartily  with  the  principle  expressed 
in  the  amendment,  and  I  hope  that  the  Committee  of  the  Whole 
will  look  upon  it  favorably  and  take  favorable  action  upon  it. 

Mr.  Barhite  —  Mr.  Chairman,  when  this  proposed  amendment 
was  before  the  committee  of  which  I  have  the  honor  to  be  a  mem- 
ber, I  was  strongly  in  favor  of  it,  and  there  have  been  no  arguments 
advanced    to    the    present    time    which    lead    me    to    change    my 
46 


722  REVISED  RECORD.  [Friday, 

opinion.  I  think  that  one  of  the  crying  evils  of  the  present  time, 
in  regard  to  office-holding,  is  the  ease  and  facility  with  which  offi- 
cers, through  bargains,  through  others  in  influential  positions,  can 
get  their  salaries  raised.  I  think,  probably,  every  delegate  upon 
this  floor  can  recall  instances  where  an  officer  has  been  nominated 
and  elected,  or  has  been  appointed  to  some  important  office,  with 
the  understanding  among  a  certain  few  that  his  salary  should  be 
increased  after  he  began  the  duties  of  the  office.  Now,  if  in  a  bar- 
gain of  that  kind,  all  of  the  people  could  be  made  a  party  to  it,  if 
every  taxpayer  who  has  to  help  pay  that  official's  salary  could  know 
of  the  bargain  which  was  made,  it  might  be  right  and  proper,  but 
the  difficulty  is,  that  the  very  people  in  interest  know  nothing  about 
it  until  the  matter  is  sprung  upon  them  and  the  salary  is  increased. 
In  our  own  county  we  had  a  small  instance  of  this  a  few  years  ago, 
at  a  time  when  we  had  a  very  competent  and  able  county  judge  upon 
the  bench.  It  was  his  opinion  from  the  amount  of  services  which 
he  performed  for  the  county  that  his  salary  should  be  increased. 
There  wfes  a  similar  opinion  on  the  part  of  our  surrogate,  and  at  that 
time  both  officials,  besides  attending  to  their  judicial  duties,  were  also 
increasing  the  salary  of  both  the  county  judge  and  the  surro- 
gate, but  the  'county  judge,  as  it  happened,  had  what  in  the  Legisla- 
ture would  be  called  a  pull,  and  what  in  this  body  I  will  refer  to  as 
an  influence.  The  final  form  which  that  bill  took  was  that  both 
salaries  were  increased  and  that  the  county  judge  was  still  permitted 
to  practice  law,  while  the  surrogate  was  shut  off  from  that  privilege. 
Now,  there  was  an  injustice  done,  perhaps  not  only  to  the  people, 
but  certainly  to  a  public  official.  The  duties  of  the  surrogate  were 
not  as  laborious  and  did  not  take  so  much  time  as  those  of  the 
county  judge,  and  yet  he  was  told  that  he  must  take  .his  salary,  and 
should  get  nothing  further  from  the  practice  of  his 'profession,  while 
the  county  judge,  who  ought  to  have  been  required  to  gave  every 
moment  of  his  time  to  the  duties  of  his  position,  was  permitted,  not 
only  to  have  his  salary  increased,  but  was  also  allowea  to  continue 
the  practice  of  the  law,  and  thereby  add  many  thousands  of  dollars 
a  year  to  his  income. 

Now,  it  is  cases  of  this  kind  which,  in  my  opinion,  work  strongly 
in  favor  of  this  proposed  amendment.  '  As  was  said  by  the  gentle- 
man from  Cattaraugus  (Mr.  Vedder),  while  the  contract  between  a 
public  official  and  the  State  to  receive  a  certain  amount  of  money 
for  services  may  not  be,  strictly  speaking,  what  we  call  a  contract, 
yet  it  certainly  is  a  moral  contract,  which  should  be  binding  upon 
every  public  official  in  the  State.  A  man  who  is  a  candidate  for  a 
public  office,  and  who  knows  what  the  duties  of  that  office  are  — 


August  17.]  CONSTITUTIONAL  CONVENTION.  723 

and  if  he  does  not  know  the  duties  he  certainly  should  not  be  a 
candidate  —  who  knows  what  the  salary  of  that  office  is,  takes  the 
office  upon  the  understanding  that  he  is  to  receive  a  certain  amount 
of  money  and  no  more,  and  he  should  not  be  allowed  after  he  has- 
served  a  portion  of  his  term,  has  partially  completed  his  service, 
either  by  direct  or  indirect  methods,  to  go  to  the  Legislature  or  to 
any  other  body  which  has  jurisdiction  over  the  matter,  and  say  that 
he  wants  an  increase  of  pay.  It  is  a  very  difficult  matter  for  mem- 
bers of  the  Legislature,  for  bodies  which  have  control  of  salaries  of 
public  officers,  in  all  instances,  to  refuse  these  requests.  It  may  be, 
in  a  short  time,  that  they  expect  to  look  for  favors  from  these  very 
gentlemen  who  are  asking  favors  from  them,  and  it  is  nothing  more 
than  human  nature  that  they  should  be  more  lenient,  more  yielding, 
in  cases  where  they  expect  favors  in  the  future,  than  in  cases  where 
they  are  not  looking  for  anything  of  the  kind.  There  should  be  a 
provision  in  the  Constitution  that  will  prevent  every  judicial  officer 
in  the  State  from  having  his  salary  increased  during  his  term.  A 
judicial  officer  is  in  a  position  where  his  influence  and  his  discretion 
are  of  value,  and  public  officials  who  have  control  of  his  salary  may 
not  feel  like  offending  him.  I  do  not  think  they  should  be 
placed  in  a  position  of  either  refusing  or  of  running  the  chance  of 
having  it  claimed  that  it  was  through  his  influence  and  favors  that 
they  expected  of  him,  that  they  took  the  action  they  did.  It  seems 
to  me,  Mr.  Chairman,  that  this  bill  or  this  amendment  is  a  good 
one,  and  that  it  ought  to  receive  the  entire  vote  of  the  House. 

Mr.  Veeder  —  Mr.  Chairman,  if  it  is  in  order,  I  would  like  to  offer 
a  substitute  for  the  whole  matter. 

The  Chairman  —  A  substitute  is  in  order. 

Mr.  Mereness  —  Mr.  Chairman,  does  Mr.  Veeder  wish  to  offer  a 
substitute? 

Mr.  Veeder  —  If  I  am  permitted  to. 

Mr.  Veeder  offered  the  following  substitute: 

"  The  Legislature  shall  not,  nor  shall  the  common  council  of  any 
city,  nor  any  board  of  supervisor^,  or  other  authorized  body,  grant 
any  extra  compensation  to  any  public  officer,  servant,  agent  or  con- 
tractor, nor  increase  or  diminish  the  salary  or  compensation  of  any 
such  during  the  term  of  service." 

Mr.  Hill  —  Mr.  Chairman,  I  understand  the  substitute  now 
offered  does  not  materially  change  the  scope  of  the  proposed 
amendment  now  before  us.  It  differs  apparently  in  phraseology, 
but  the  principle  is  still  preserved.  Thus  far  in  this  discussion  it 
appears  that  the  chief  objection  raised  to  the  proposed  amendment 


724  REVISED  RECORD.  [Friday, 

is  that  it  invades  the  province  of  legislation.  It  must  be  admitted 
that  the  proposed  amendment,  if  adopted,  would  have  that  effect. 
But,  Mr.  Chairman,  as  has  been  so  well  stated  by  Mr.  Nicoll,  of 
•  New  York,  and  by  Mr.  Lewis,  of  Rochester,  the  evil  is  so  great 
in  cities  that  even  though  it  have  that  operation  and  prevent  the 
increase  or  decrease  of  salaries  of  legislative  officers  —  and  by  that 
I  mean  officers  who  are  created  by  the  Legislature  —  still  the  pro- 
posed amendment  should  prevail.  There  is  at  present  no  limitation 
whatever  upon  the  power  of  the  Legislature  to  increase  or  decrease 
the  salaries  of  officers,  except  of  those  officers  who  are  expressly 
enumerated  in  the  Constitution  itself,  such  as  State,  executive,  legis- 
lative and  judicial  officers.  It  transpires  in  many  cases  after  men 
are  inducted  into  office,  and  after  they  have  surrounded  themselves 
with  numerous  clerks  and  assistants,  that  their  duties  suddenly 
become  so  colossal  that  they  think  it  necessary  that  some  provision 
should  be  made  to  relieve  them  from  the  onus  of  the  situation  in 
which  they  are  placed,  and  they,  therefore,  appeal  immediately  to  the 
Legislature  for  relief  and  for  an  increase  of  salary. 

This  has  become  a  crying  evil  in  all  the  municipalities  of  the 
State.  The  disposition  to  ask  for  increase  of  salary,  the  zeal  with 
which  that  disposition  is  pursued,  the  anxiety  that  it  may  not  come, 
are  such  as  to  interfere  seriously  with  the  proper  discharge  of 
official  duties.  Why,  Mr.  Chairman,  should  there  not  be  an  inhibi- 
tion in  the  Constitution  prohibiting  the  increase  or  decrease  of 
salaries  of  officers  created  by  the  Legislature  during  their  official 
terms?  Is  there  any  well-founded  reason  for  this  omission?  It 
has  been  the  experience  in  some  parts  of  the  State  that  no  sooner 
are  persons  inducted  into  office  than  the  application  is  made  for 
an  increase  of  salary,  and  in  some  cases  the  salary  has  been  doubled, 
where  the  duties  have  not  been  increased  at  all.  It  is  so  easy  for 
a  man  in  office,  who  cannot  perform  the  duties  that  devolve  upon 
him,  under  his  oath  of  office,  for  the  salary  fixed  by  law  at  the  time 
of  his  election  or  appointment,  to  resign,  that  I  can  see  no  objection 
whatever  to  the  adoption  of  this  amendment.  If  I  were  in  office 
and  I  could  not  perform  the  duties  of  the  office  for  the  salary  fixed 
by  law,  I  would  be  willing  to  resign  and  permit  somebody  else  to 
be  elected  thereto.  It  seems  to  me  the  same  inhibition  should 
apply  to  officers  created  by  the  Legislature,  or  to  those  not  enu- 
merated in  the  Constitution,  as  applies  to  those  that  are  enumerated, 
and  that,  during  the  term  of  incumbency,  no  official  salaries  should 
be  increased  or  decreased.  If  the  work  is  so  great  in  a  given  case 
that  the  officer  cannot  perform  it  for  the  salary  stipulated,  he  should 
resign  his  office  and  let  somebody  be  elected  who  will  perform  it 


August  17.]  CONSTITUTIONAL  CONVENTION.  725 

for  the  salary  provided  by  law.  Should  it  then  transpire  that  it  is 
right  in  view  of  the  increase  of  the  duties  of  the  office  that  the  salary 
should  be  increased,  the  Legislature  is  proverbially  quick  to  act 
in  that  direction.  The  person  can  be  reappointed  or  re-elected  to 
the  office.  But,  Mr.  Chairman,  as  has  been  stated  by  the  gentle- 
man from  New  York  (Mr.  Nicoll),  there  are  three  provisions  of 
the  Constitution  relating  to  official  salaries  which  ought  to  be 
taken  into  consideration  together,  and  a  complete  scheme  of 
amendments  ought  to  be  proposed  to  the  end  that  the  Constitution 
may  be  preserved  harmonious  and  consistent  with  itself,  and  also 
to  the  end  that  all  officers,  both  those  enumerated  in  the  Constitu- 
tion and  those  not  enumerated,  should  be  brought  clearly  within 
the  inhibition  that  now  applies  to  the  officers  who  are  enumerated. 

Mr.  Maybee  —  Mr.  Chairman,  the  suggestion  has  been  made  dur- 
ing the  course  of  the  discussion  that  this  proposed  amendment 
ought  not  to  be  adopted,  because  it  would  prevent  giving  additional 
compensation  to  an  officer  whose  duties  had  been  increased  by  some 
statute  passed  by  the  Legislature.  That  suggestion,  it  seems  to  me, 
is  not  entitled  to  much  consideration,  notwithstanding  the  dis- 
tinguished source  from  which  it  emanates.  It  seems  to  me  that 
when  a  man  accepts  a  civil  or  political  office  he  takes  it  with  the 
understanding  that  he  is  to  discharge,  not  only  the  duties  that  then 
appertain  to  that  office,  but  also  any  duties  which  may  be  imposed 
upon  it  by  a  subsequent  statute  or  by  subsequent  legisla- 
tion. When  a  citizen  accepts  a  public  office,  it  seems  to  me,  that 
there  is  an  understanding  between  him  and  the  State  that  he  shall 
give  to  the  duties  of  that  office  all  the  time  at  his  disposal  and  at 
his  command,  if  the  State  demand  it.  If  the  State  shall  pass  a  law 
increasing  his  duties,  adding  to  the  duties  which  he  is  required  to 
perform,  it  seems  to  me  that  that  constitutes  no  reason  why  the 
compensation  of  the  office  should  be  increased. 

There  is  no  question  that  this  is  a  flagrant  evil.  All  over  the 
State,  in  the  counties  before  boards  of  supervisors,  civil  officers  are 
constantly  making  application  for  increase  of  salary.  It  leads  to 
lobbying  and  wire  pulling  and  to  disgraceful  political  performances 
on  the  part  of  these  officers  and  on  the  part  of  boards  who  are 
authorized  to  increase  their  compensation.  In  the  Legislature  there 
are  applications  of  the  same  character.  There  is  a  constant  effort 
on  the  part  of  officers  elected  to  political  positions  to  get  an  increase 
of  salary  so  that  the  compensation  which  they  receive  shall  go  fur- 
ther to  enrich  them  and  to  fill  their  pockets  than  would  the  salary 
that  was  attached  to  the  office  when  they  were  elected  to  it.  There  is 
an  implied  understanding,  an  implied  agreement  between  the  officer 


726  REVISED  RECORD.  [Friday, 

and  the  people  that  he  shall  perform  the  duties  of  the  office  and  give 
his  whole  time  to  it,  if  need  be,  for  the  compensation  that  was  fixed 
at  the  time  that  he  accepted  the  nomination.  I  think  this  amend- 
ment ought  not  only  to  preclude  the  possibility  of  increasing  sala- 
ries after  the  term  of  office  begins,  but  I  think  it  ought  to  preclude 
the  possibility  of  a  public  officer,  after  his  election  and  before  his 
term  of  office  begins,  obtaining  an  increase  of  salary  from  a  board 
of  supervisors  or  from  the  Legislature.  The  only  fault  I  find  with 
this  proposed  amendment  is  that  it  does  not  go  far  enough.  The 
principle  is  a  salutary  one.  The  enactment  of  this  constitutional 
provision  would  be  a  great  advantage  to  the  people  of  this  State. 
It  would  go  far  to  do  away  with  a  flagrant  and  growing  evil,  and,  I 
hope,  the  Convention  will  favorably  consider  the  amendment  and 
make  it  a  part  of  our  fundamental  law,  if  ratified  by  the  people,  as 
it  surely  would  be. 

Mr.  Rolls  —  Mr.  Chairman,  I  have  listened  with  a  great  deal  of 
attention  to  the  arguments  presented  on  this  amendment,  and  there 
is  no  doubt  that  the  evil  which  its  advocates  wish  to  remedy  is  a 
very  serious  one.  It  is  an  indecency  of  the  highest  character  to 
have  salaries  increased  by  the  Legislature,  especially  against  the 
protest  even  of  the  localities  and  counties  and  cities  which  have  to 
pay  the  money.  I  need  not  at  all  enlarge  upon  that  view  of  this 
question,  for  it  has  been  very  ably  and  eloquently  presented;  but 
it  seems  to  me  that  the  remedy  proposed  is,  with  all  due  respect, 
very  much  like  the  case  described  by  Charles  Lamb,  when  the  house 
was  set  on  fire  in  order  to  have  roast  pig.  I  do  not  think  it  is  neces- 
sary, and  I  do  not  believe  that  it  is  in  accordance  with  sound  constitu- 
tional principles  that,  in  order  to  remedy  the  hasty,  ill-considered 
and,  perhaps,  corrupt  tendencies  of  local  boards  of  supervisors,  or 
councils,  or  even  of  some  Legislatures,  we  should  put  into  the 
fundamental  law  a  prohibition  which  would  make  it  impossible  in 
many  cases  to  do  simple  justice  to  public  officers.  If  the  principle 
of  local  self-government,  upon  which  our  government  is  based,  and 
of  which  a  modification  talked  much  about  in  this  Convention  and 
called  home  rule  has  been  very  much  discussed,  if  that  principle 
is  to  be  maintained  in  our  new  Constitution,  as  I  sincerely  hope  and 
think  it  will  be,  then  this  amendment  constitutes  an  undue  interfer- 
ence. Is  it  right  and  proper  that  the  common  councils  of  cities  and 
the  boards  of  supervisors  of  counties  should  have  both  the  power  and 
also  the  responsibility  of  fixing  salaries  of  local  employes  paid 
entirely  out  of  the  taxes  collected  in  those  communities.  Moreover, 
I  have  no  sympathy  whatever  with  the  theory  upon  which  many 
amendments  seem  to  be  offered,  namely,  that  the  Legislature  neces- 


August  17.]  CONSTITUTIONAL  CONVENTION.  727 

sarily  does  the  wrong  thing,  or  omits  to  do  the  right  thing.  I  know 
that  in  the  past  there  have  been  crying  evils  in  our  legislation,  and 
in  the  results  coming  from  them,  but  the  remedy  is  not  to  take 
away  the  power  to  do  both  good  and  evil  in  the  Constitution.  The 
remedy  is  with  the  people  to  elect  legislators  who  will  do  their  duty. 
Now,  until  there  is  some  argument  advanced  which  will  show  that 
the  reasons  opposed  to  this  amendment  can  be  overcome,  I  sin- 
cerely hope  that  it  will  be  voted  down.  As  to  the  theory  of  con- 
tracts between  the  public  and  an  officer  elected,  as  has  been  well 
said  by  some  gentleman  this  morning,  the  obligation  of  that  contract 
is  reciprocal;  and,  if  the  duties  of  the  office  are  increased  after  the 
election,  it  is  right  and  proper,  and  it  ought  to  be  possible  for  the 
proper  authority  also  to  increase  the  pay.  I  think,  as  a  matter  of 
simple  justice,  and  without  in  any  way  wishing  to  defend  the  scan- 
dals with  which  the  raising  of  salaries  hitherto  by  the  Legislatures 
and  local  bodies  has  been  attended  —  and  as  a  matter  of  simple  jus- 
tice —  I  think  this  amendment  ought  not  to  prevail. 

Mr.  Mulqueen  —  Mr.  Chairman,  it  is  generally  conceded  that  this 
is  a  very  important  amendment;  yet  a  number  of  amendments  have 
been  proposed  here  to-day.  It  is  the  fashion  in  this  Convention  to 
proclaim  that  we  should  place  some  prohibition  upon  the  Legisla- 
ture to  amending  bills  on  their  final  passage.  What  are  we  doing 
to-day?  We  have  before  us  three  or  four  amendments  now,  and 
there  is  hardly  a  member  of  the  Convention  that  knows  anything 
about  them.  I  understand  one  or  two  more  are  to  be  proposed,  and 
we  will  be  asked  to-day  to  vote  upon  those  amendments.  I  think  it 
is  only  due  to  us,  as  members  of  this  Convention,  as  we  are  asked 
to  vote  upon  a  matter  that  when  adopted  will  be  beyond  our  con- 
trol, that  all  those  proposed  amendments  should  be  printed,  to  the 
end  that  we  might  think  over  them  at  least  for  an  hour  before  vot- 
ing upon  them.  I,  therefore,  move,  Mr.  Chairman,  that  this  com- 
mittee now  rise,  report  progress  and  ask  leave  to  sit  again;  and 
when  we  reach  the  Convention,  if  we  do,  I  shall  move  that  those 
amendments  be  printed.  If  it  is  a  good  rule,  Mr.  Chairman,  for 
the  Legislature  that  they  should  be  prohibited  from  amending  bills 
on  their  final  passage,  what  reason  can  be  given  against  it  here? 
\Ye  ought  to  know  just  what  we  are  called  upon  to  vote  for,  and 
not  run  through  an  amendment  in  the  eleventh  hour. 

Mr.  Veeder  —  Mr.  Chairman,  I  think  if  that  motion  is  to  prevail, 
Mr.  Mulqueen  should  withdraw  it  until  other  substitutes  which 
have  been  prepared  may  be  offered. 

Mr.  Nicoll  —  I  hope  that  motion  will  not  prevail. 


728  REVISED  RECORD.  [Friday, 

The  Chairman  —  Does  Mr.  Mulqueen  insist  upon  the  motion? 
Mr.  Mulqueen  —  I  regret  to  say,  Mr.  Chairman,  that  I  did  not 
hear  Mr.  Veeder. 

Mr.  Veeder  —  There  was  a  proposition  substantially  agreed  upon, 
which  covers  the  ground,  we  think,  prohibiting  any  department  or 
any  Legislature,  or  any  board  of  supervisors  or  common  council 
from  increasing  or  decreasing  salaries. 

The  Chairman  —  The  question  is  not  debatable.  If  Mr.  Mul- 
queen insists  upon  the  motion,  the  Chair  will  put  it. 

Mr.  Mulqueen  —  Yes,  sir;  I  insist  upon  the  motion. 

The  Chairman  put  the  question  on  Mr.  Mulqueen's  motion,  that 
the  committee  rise,  report  progress  and  ask  leave  to  sit  again,  and  it 
was  determined  in  the  negative. 

Mr.  Veeder — Mr.  Nicoll  has  a  proposition  that  is  substantially 
agreed  upon,  and,  if  we  can  get  it  before  the  committee,  I  think  it 
will  be  satisfactory. 

Mr.  Nicoll  —  Mr.  Chairman,  this  proposition  which  has  been  sug- 
gested by  Mr.  Marshall  and  handed  to  me,  seems  to  express  the 
principle  which  it  is  desired  to  extend  to  officers  in  the  civil  divisions 
of  the  State  not  mentioned  in  the  Constitution  in  appropriate  con- 
stitutional language.  It  reads  as  follows: 

"  No  extra  compensation  shall  be  granted  to  any  public  officer, 
servant  or  agent  of,  or  contractor  with,  the  State,  or  any  civil 
division  thereof." 

That  is  all  of  it,  but  that  portion  of  it  continues  the  article  3, 
section  24,  but  not  in  the  exact  language,  although  very  much  of 
the  language  is  followed.  The  other  portion  is: 

"  Nor  shall  the  salary  or  compensation  of  any  public  officer  be 
increased  or  diminished  during  the  term  for  which  he  was  elected 
or  appointed." 

That  is  nothing  more  than  an  extension  to  officers  in  the  cities, 
towns,  counties  and  villages  of  the  constitutional  provisions  found 
.in  section  9,  article  10,  in  substantially  the  same  language;  so  that 
the  whole  amendment  reads: 

"  Xo  extra  compensation  shall  be  granted  to  any  public  officer, 
servant  or  agent  of,  or  contractor  with,  the  State,  or  any  civil 
division  thereof.  Nor  shall  the  salary  or  compensation  of  any 
public  officer  be  increased  or  diminished,  during  the  term  for  which 
he  was  elected  or  appointed." 

Mr.  Moore  —  May  I  be  allowed  to  ask  Mr.  Xicoll  a  question  for 
information? 


August  17.]  CONSTITUTIONAL  CONVENTION.  729 

Mr.  Nicoll  —  Certainly. 

Mr.  Moore  —  I  would  like  to  ask  the  gentleman  how  this  measure, 
if  passed,  would  affect  a  case  like  this;  in  a  county  where  the  office 
of  the  county  judge  and  the  surrogate  is  one,  the  supervisors  sud- 
denly declare  that  the  surrogate's  office  is  vacant,  and  that  the 
county  judge  shall  perform  the  duties  of  that  office  in  connection 
with  his  own.  Would  the  county  judge  be  obliged  to  continue  to 
perform  the  duties  of  the  office  of  the  surrogate  at  the  same  salary 
which  he  received  as  county  judge,  particularly  where,  as  in  my 
county,  the  county  judge  receives  only  $100  a  month,  and  the  sur- 
rogate receives  $150  a  month? 

Mr.  Xicoll  —  I  suppose,  Mr.  Chairman,  there  is  nothing  here  pre- 
venting the  proper  power  from  abolishing  the  office. 

Mr.  Moore  —  What  I  ask  is,  would  the  county  judge  be  obliged 
to  perform  those  extra  duties  for  the  same  compensation  that  he 
had  received  as  county  judge  only? 

Mr.  Nicoll  —  He  probably  would  have  to  do  it. 

Mr.  Moore  —  That  is  what  I  supposed.  Well,  then  I  am 
against  it. 

Mr.  Spencer — Mr.  Chairman,  I  am  in  hearty  sympathy  with  the 
substitute  offered  by  Mr.  Nicoll,  and,  as  it  covers  the  amendment 
proposed  by  me,  when  this  proposition  was  — 

The  Chairman  —  The  Chair  will  inform  Mr.  Spencer  that  the  sub- 
stitute offered  by  Mr.  Nicoll  cannot  be  entertained,  as  there  are 
two  amendments  and  a  previous  substitute  before  the  committee. 

Mr.  Spencer  —  I  am  aware  of  that,  if  the  Chairman  please,  and 
that  was  what  I  was  coming  to  - 

Mr.  Veeder  —  I  will  save  your  point  of  order.  Mr.  Nicoll's  sub- 
stitute is  satisfactory  and  I  withdraw  mine. 

Mr.  Spencer  —  I  was  about  to  withdraw  my  proposed  amendment 
for  the  purpose  of  allowing  that  to  be  offered  as  an  amendment  not 
in  conflict  with  the  theory  of  home  rule.  I  do  not  understand  that 
anybody  is  in  favor  of  home  rule,  without  proper  restrictions  and 
limitations,  restrictions  that  will  prevent  abuses,  and  the  abuses 
spoken  of  here  constitute  one  of  the  many  evils  that  exist  in  munici- 
palities that  should  be  guarded  by  the  fundamental  law;  and  I  think 
my  friend,  Mr.  Holls,  is  mistaken  when  he  opposes  this  proposition 
as  being  in  conflict  with  the  proposition  of  home  rule. 

Mr.  Lincoln  —  Mr.  Chairman,  I  think  nearly  every  delegate  who 
has  spoken  upon  this  question  has  spoken  from  personal  experi- 
ence; at  least  there  is  a  diversity  of  views  expressed,  based,  I  can 


73o  REVISED  RECORD.  [Friday, 

see  very  clearly,  upon  the  experience  of  the  members.  Now,  from 
my  own  experience,  I  am  able  to  say  that  I  am  entitrely  opposed  to 
this  amendment  and  to  all  of  these  substitutes.  I  think  that  the 
boards  of  supervisors  and  the  local  boards  which  have  power  to  fix 
salaries  of  local  officers  ought  to  have  the  power  to  increase  those 
salaries  according  to  their  discretion.  Circumstances  very  often 
arise,  as  already  indicated  here,  in  which  such  an  increase  is  not 
only  necessary  and  advisable,  but  just.  I  have  had  the  honor  to  be 
a  member  of  the  board  of  supervisors  of  the  county  that  I  represent 
here,  and  I  know  that  during  that  time  instances  did  arise  where 
public  officers  asked  to  have  their  salaries  increased,  and  where  it 
was  entirely  proper  that  they  should  be  increased.  There  is  no 
implied  understanding  that  the  duties  of  an  office  shall  remain  the 
same  during  the  term.  I  never  understood  it  that  way.  There  is 
no  moral  obligation  that  the  officer  who  assumes  the  duties  of 
a  public  office  shall  work  for  two,  or  three,  or  six,  or  ten,  or  fourteen 
years  for  the  salary  which  the  Legislature  or  the  board  of  super- 
visors or  the  common  council  has  seen  fit  to  fix.  A  salary  is  pre- 
sumed to  be  compensation  for  the  duties  performed  according  to 
the  light  which  the  board  has  at  the  time  the  salary  is  fixed.  They 
cannot  presume  any  more  than  the  head  of  a  commercial  establish- 
ment can  presume,  or  the  directors  of  a  corporation,  that  the  duties 
of  the  office  will  remain  precisely  the  same  for  all  time  to  come. 
The  duties  of  the  office  are  prescribed  by  the  statute,  if  you  please, 
but  they  are  flexible,  uncertain,  indefinite,  depending  upon  the 
amount  of  public  business  which  may  come  to  that  particular  office. 
Now,  the  board  of  supervisors,  or  the  local  board,  whatever  it  is, 
with  the  light  which  it  has,  says  that  the  services  connected  with  that 
office  are  worth  so  much.  That  is  not  any  sort  of  guarantee  or 
indication  that  the  duties  of  the  office  will  remain  the  same,  or  that 
the  services  will  remain  precisely  the  same,  or  that  the  value  is  to 
be  the  same,  during  the  term  of  office.  Now,  a  vital  distinction  is 
overlooked,  it  seems  to  me,  in  the  substitute  which  has  been  offered, 
and  in  all  the  discussion  which  has  been  had  so  far  upon  this  amend- 
ment. The  Constitution  provides  that  judges  of  the  higher  courts 
shall  receive  fixed  compensation,  but  that  that  compensation  shall 
not  be  diminished  during  their  term  of  office.  They  are  prohibited 
from  practicing  law,  and  are  practically  debarred  from  doing  any 
other  business.  Now,  I  suppose  the  salary  of  that  class  of  officers 
is  fixed  upon  the  theory  that  they  are  to  give  their  entire  time 
and  attention  to  their  official  duties.  That  is  not  the  case  with  local 
officers,  like  the  district  attorney,  or  the  superintendent  of  the  poor, 
or  the  county  treasurer.  Those  duties,  of  course,  depend  upon  the 


August  17.]  CONSTITUTIONAL  CONVENTION.  731. 

provisions  of  the  statute  and  the  various  services  which  they  may- 
be called  upon  to  perform  during  their  term  of  office;  but  in  nearly 
all  those  cases  the  incumbents  of  the  office  may  have  private  busi- 
ness. Their  entire  time  is  not  presumed  to  be  taken  in  the  perform- 
ance of  their  public  services.  And  that  is  taken  into  consideration 
when  the  salary  is  fixed.  And  the  distinction  which  I  wanted  to  call 
attention  to  is  this,  that  in  a  certain  class  of  offices  the  incumbent 
is  presumed  by  the  Constitution  to  give  his  entire  time  to  it,  while 
in  the  other  class  of  offices  he  is  not  presumed  to  give  his  entire 
time.  Now,  the  substitute  offered  here,  and  which,  as  I  under- 
stand it,  is  now  pending,  would  prohibit  even  the  increase  of  the 
compensation  of  a  constable  of  a  village,  or  a  street  commissioner 
in  a  village,  or  any  officer  in  a  town,  where  the  salary  or  the  com- 
pensation is  within  the  discretion  of  some  local  board.  Now,  the 
duties  of  those  officers  are  frequently  incidental,  and  not  of  a  general 
character.  Citizens  holding  these  offices  perform  their  private 
duties;  they  carry  on  their  private  business;  they  spend  a  little 
time,  perhaps,  each  day,  or  each  year,  in  the  performance  of  these 
other  official  duties.  Now,  I  say  it  would  be  wrong  in  principle  to 
put  into  our  Constitution  a  prohibition  against  any  increase  in  the 
salaries  of  those  officers,  if  the  board  having  the  power  to  fix  those 
salaries  sees,  as  a  matter  of  justice,  that  the  services  are  worth  more 
next  year  than  they  are  worth  this  year.  The  Constitution,  as  it  now 
stands,  prohibits  the  Legislature,  or  the  common  council  of  a  city, 
or  the  board  of  supervisors  of  a  county  from  granting  any  extra 
compensation  to  public  officers.  That,  I  believe,  is  as  far  as  it  ought 
to  go.  That  is,  I  suppose,  aimed  at  the  practice  which  did  once 
exist,  and  which  might  exist  again,  that  in  addition  to  the  salary 
extra  compensation  might  be  granted,  instead  of  increasing  the 
salary,  which  would  be  the  regular  way  to  accomplish  the  result. 
Now,  I  am  in  favor  of  retaining  that  provision,  and  I  think, 
Mr.  Chairman,  that  the  Constitution,  as  it  now  stands,  is  sufficient 
upon  this  question,  and  section  24,  as  it  now  stands  and  which  is 
sought  to  be  amended,  is  all  that  we  need  upon  this  subject,  because 
that  already  provides  that  the  Legislature  shall  not,  nor  shall  the 
common  council  of  any  city,  or  any  board  of  supervisors,  grant  any 
extra  compensation  to  any  public  officer,  servant,  agent  or  con- 
tractor; and  a  subdivision  of  section  18  of  the  same  article  provides 
that  "  no  special  or  local  law  shall  be  passed  creating,  increasing  or 
decreasing  the  fees,  percentages  or  allowances  of  public  officers  dur- 
ing the  term  for  which  said  officers  are  elected  or  appointed." 
Now,  I  think  all  the  safeguards  that  the  people  need  already  exist  in 
the  Constitution  as  it  stands.  The  common  council  of  Rochester, 


732  REVISED  RECORD.  [Friday, 

it  seems  to  me,  ought  to  have  power,  under  the  provisions  as  they 
now  are,  to  restrain  themselves  from  granting  extra  compensation 
to  officers.  I  think  it  is  a  matter  of  common  understanding  and 
knowledge  that  there  is  no  more  economical  body  of  men  ever 
gathered  together  in  the  State  of  New  York  than  the  boards  of 
supervisors  of  the  various  counties  of  the  State.  They  do  not  waste 
the  public  money,  and  there  is  not  very  much  danger,  as  an  ordinary 
proposition,  of  any  officer's  salary  being  increased;  but,  as  I  already 
stated,  in  the  county  that  I  represent,  some  officers'  salaries  have 
been  increased,  and  they  ought  to  have  been  increased.  I  voted  for 
the  increase,  and  there  was  not  any  lobbying  about  it,  either;  it 
was  a  matter  of  simple  justice,  because  the  duties  of  the  office  had 
been  largely  augmented  during  the  term  of  the  officer.  I  say,  then 
that  in  view  of  the  fact  that  these  local  boards  are  presumed  to 
know  and  ought  to  know  the  duties  of  the  office  and  the  necessities 
of  the  situation,  they  ought  to  have  entire  control  over  the  salaries 
and  compensation  of  the  subordinate  officers  which  are  within  their 
jurisdiction. 

Mr.  Durfee  —  Mr.  President,  I  concur  with  the  views  expressed 
by  the  gentleman  who  has  last  spoken,  in  regard  to  the  compensa- 
tion and  salaries  of  local  officers,  and  they  have  been  so  well 
expressed  that  I  shall  not  attempt  to  add  anything  to  what  he  has 
said  in  that  direction,  except  this:  I  believe  in  the  education  of 
responsibility,  and  it  does  not  seem  to  me  to  be  safe  or  wise  to 
undertake  to  provide,  in  the  Constitution,  which  we  are  endeavoring 
to  frame, .for  the  subjection  of  the  people  of  this  State  to  any  tute- 
lage. I  think  they  ought  to  be  left  in  such  condition  that  their 
interests  require  them  to  take  part  in  public  affairs  and  to  take 
notice  of  the  conduct  of  their  servants  in  public  station.  We  have 
before  us  propositions  which  look  to  requiring  them  to  go  to  the 
polls  to  vote.  Whatever  may  become  of  those  propositions,  we 
ought  not  to  take  away,  at  least,  that  incentive  to  going  to  the  polls 
to  vote  which  their  interests  lend  and  give.  And,  if  their  interests 
require  them  to  be  active  and  influential  in  the  choice  of  their  local 
officers,  they  may  be  depended  upon  to  look  after  their  interests. 
That  is  the  experience,  I  think,  of  the  gentlemen  upon  this  floor 
who  come  from  the  rural  parts  of  this  State.  The  farmer  who 
hitches  up  his  team  and  drives  five  or  six  miles  through  the  mud 
and  the  snowdrifts  to  town  meeting  to  vote  for  supervisor,  and 
assessor,  and  justice  of  the  peace,  knows  that  in  doing  so  he  is 
looking  after  his  own  interests;  and  when  the  tax  levy  is  laid  and 
his  taxes  come  to  be  paid  he  scrutinizes  the  conduct  of  the  officers 
that  he  has  participated  in  choosing;  and  that  is  a  healthy  condi- 


August  17.]  CONSTITUTIONAL  CONVENTION.  733 

tion,  as  it  seems  to  me,  of  the  public  service  in  that  regard.  In 
respect  of  the  increase  of  salaries  by  the  Legislature  it  is  true,  it  has 
been  true,  and  under  the  present  methods  of  legislation  will  con- 
tinue to  be  true,  probably,  that  a  local  measure  recommended  by 
the  representative  of  a  given  locality '  goes  through  almost  as  a 
matter  of  course;  but  with  the  salutary  provisions  which  are 
embodied  in  an  amendment  before  us,  which  will  soon  come  up  for 
consideration  that  before  local  measures  shall  be  passed  the  com- 
munj.ties  interested  shall  have  an  opportunity  of  knowing  what 
those  measures  are;  and,  with  that  safeguard  added,  as  I  trust  it  may 
be  added,  there  will,  I  believe,  be  no  ground  for  apprehension  as  to 
the  action  of  the  Legislature  in  unduly  increasing  the  compensation 
of  local  officers.  For  these  reasons,  Mr.  Chairman,  it  seems  to  me 
that  the  wise  and  prudent  course  is  not  to  extend  the  restrictions 
which  already  exist,  and  which,  as  Mr.  Lincoln  has  pointed  out, 
very  properly  exist  in  the  present  Constitution. 

Mr.  Mclntyre  —  Mr.  President,  frpm  the  reading  of  section  24, 
article  3,  the  intention  was  evident  that  the  Legislature  should  not, 
or  the  common  council  of  any  city,  or  any  board  of  supervisors, 
grant  any  extra  compensation  to  any  public  officer.  Now,  it  strikes 
me,  from  reading  that,  that  the  common-sense  view  of  it  is  that  they 
did  not  intend  they  should  have  any  compensation  or  increase  in 
salary,  but  the  courts  have  held  that  that  did  not  apply  to  the  increase 
of  salary.  Now,  I  cannot  understand  what  the  framers  of  the  Con- 
stitution meant,  unless  they  meant  just  what  an  ordinary  person 
would  mean  by  that,  and  it  seems  to  me  that  it  is  best  for  this  Con- 
stitutional Convention  to  put  such  language  into  the  section  that 
there  will  be  no  mistaking  or  doubting  it  whatever,  and  I  think  that 
the  man  who  is  elected  to  an  office,  with  the  salary  already  fixed, 
should  be  satisfied  with  the  same  while  in  office.  Let  them  increase 
the  salary  before  he  goes  in,  if  the  salary  is  not  large  enough,  but 
let  us  not  leave  that  open  so  that  all  of  the  officers  can  be  impor- 
tuned in  such  a  way  to  increase  the  salaries.  I  think  we  should  be 
derelict  in  our  duty  if  we  did  not  pass  just  such  an  amendment  as 
this.  Why,  it  strikes  me  that  we  ought  not  to  spend  so  much 
time  over  this,  that  it  is  a  plain,  common-sense  view;  and  I  cannot 
understand  why  any  officer  of  a  village,  or  any  officer  of  a  town, 
should  have  his  salary  increased  any  more  than  the  officer  in  any 
other  department;  and  I  think  this  is  a  very  commendable  amend- 
ment and  ought  to  pass  without  any  question.  No  supervisor 
ought  to  oppose  this  amendment.  The  salaries  are  fixed,  and  I  do 
not  know  why  the  supervisors  should  want  to  me  importuned, 
because,  forsooth,  some  man  that  may  do  a  little  more  work  than 


734  REVISED  RECORD.  [Friday, 

he  expected  he  was  going  to  do  desires  an  increase  of  compensa- 
tion. Let  us  fix  it  so  that  there  will  be  no  question  or  doubt  about 
it,  and  let  every  man  work  through  the  period  for  which  he  is 
elected  at  the  salary  for  which  he  took  office. 

Mr.  Baker  —  Mr.  Chairman,  I  have  listened  with  some  attention 
to  this  debate.  I  have  been  surprised  to  hear  some  gentlemen 
representing  rural  counties  oppose  this  proposed  amendment.  I  am 
sorry  to  disagree  with  my  friend,  Lincoln,  and  with  the  gentle- 
man from  Wayne,  but  I  must.  I  believe  the  spirit  of  this  amend- 
ment is  proper.  I  have  not  kept  track  of  the  numerous  amendments 
and  the  substitutes  that  have  been  offered,  but  the  spirit  of  this 
proposed  amendment  I  agree  with.  Now,  there  is  a  remedy  if  a 
gentleman  gets  an  office  the  duties  of  which  he  cannot  afford  to 
discharge  for  the  salary  fixed.  He  has  one  great  remedy,  and  he 
holds  it  in  his  own  hands.  He  can  resign.  I  have  a  notable 
instance  of  that  kind  in  my  own  mind  that  occurred  in  years  gone 
by.  A  gentleman  who  had  been  county  judge  thought  it  would  be 
pleasant  to  hold  the  office  of  district  attorney,  an  office  that  I  was 
then  holding.  He  sought  and  obtained  the  nomination,  and,  as  he 
belonged  to  the  party  that  always  prevails  in  that  county,  he  was 
elected.  He  held  it  three  months,  and  wrote  me  that  if  I  would  be 
an  applicant  for  the  appointment,  he  would  resign,  and  when  I 
called  on  him,  "  why,"  he  said,  "  the  salary  is  not  adequate."  Well, 
now,  sir,  he  exercised  one  of  his  inalienable  rights  and  he  resigned. 
Now,  gentlemen  of  the  Convention,  there  has  been  more  said  about 
the  raising  of  salaries  in  this  State  through  the  public  press  than 
about  almost  any  other  thing,  and,  if  we  can  fix  it  —  I  do  not  know 
that  we  can  fix  anything  that  cannot  be  got  around  by  some  leger- 
demain in  legislation  —  perhaps  my  friend  from  Cattaraugus  could 
tell  me  better  about  that  —  but,  if  we  can  fix  it  in  the  organic  law 
of  this  State  so  that  when  gentlemen  seek  office  they  shall  seek  it 
with  a  distinct  understanding  that  their  salaries  cannot  be  raised, 
then  we  will  have  done  one  good  thing  in  this  Constitutional  Con- 
vention. It  has  surprised  me  the  cheek  that  some  gentlemen 
assume  after  they  get  into  office.  Knowing  the  salary,  the  very 
first  business  afterwards  is  to  go  to  work  to  see  if  they  cannot  get 
the  salary  increased.  Now,  Mr.  Chairman,  suppose  a  candidate 
were  to  advertise  that  he  not  only  wanted  the  office,  but  proposed 
to  have  the  salary  increased,  I  would  like  to  know,  at  various 
periods  during  the  campaign,  what  he  thought  his  chances  were? 
Mr.  Chairman,  I  believe  the  principle  of  this  proposed  amendment 
is  right.  Let  us  put  the  bars  up,  and,  if  we  do  this,  we  will  receive 
the  commendation  of  pretty  much  all  the  people  in  this  State,  no 


August  17.]  CONSTITUTIONAL  CONVENTION.  735 

matter  what  their  politics  are.     I  think  I  have  said  enough  on  this 
subject  to  show  where  I  stand.     (Applause.) 

Mr.  Choate  —  Mr.  Chairman,  I  would  like  to  ask  Mr.  Mereness, 
who,  I  believe,  is  the  father  of  this  measure,  a  question. 

Mr.  Mereness  —  The  stepfather  now.     (Laughter.) 

Mr.  Choate  —  The  grandfather.  (Renewed  laughter.)  I  did 
not  appreciate,  when  I  made  the  remarks  that  I  did  this  morning 
that  the  office  holders  throughout  the  State  were  such  a  bad  set  of 
men.  What  I  wish  to  ask  is,  in  how  many  instances  Mr.  Mereness 
has  known  any  local  board  to  be  false  to  its  trust  and  to  increase 
the  salary  of  an  office  holder  during  his  term  of  office,  unless  for 
some  just  cause? 

Mr.  Mereness  —  I  have  known  of  a  number  of  instances  where 
they  have  done  that,  and  I  have  never  known  of  any  case  where 
they  had  any  cause  to  do  it. 

Mr.  Acker  —  Mr.  Chairman,  I  have  just  been  taking  a  poll  of  this 
committee,  and  I  am  satisfied  that  every  man  is  ready  to  vote  and 
ready  to  vote  right.  Now,  Mi .  Chairman,  I  ask  unanimous  consent 
that  the  Chairman  put  these  propositions  in  their  order,  and  that 
we  vote  on  them  as  he  puts  them,  and  see  how  nicely  this  com- 
mittee can  dispose  of  this  question,  and  dispose  of  it  correctly  and 
go  on  with  other  business. 

Mr.  Mereness  —  May  I  inquire  what  there  is  before  the 
committee? 

The  Chairman  —  The  Secretary  infofms  the  Chair  that  the  ques- 
tion before  the  House  is  the  amendment  of  Mr.  Green  and  the  sub- 
stitute of  Mr.  Nicoll. 

Mr.  Mereness  —  Mr.  Green  is  not  here,  and,  inasmuch  as  the  sub- 
stitute offered  by  Mr.  Nicoll  covers  the  precise  point  sought  to  be 
covered  by  Mr.  Green,  I  think  that  his  amendment  would  probably 
have  to  be  voted  upon;  but  it  seems  to  me  that  the  safe  way  is  to 
vote  that  down,  and  then,  if  the  committee  is  in  favor  of  the  prin- 
ciple, it  can  adopt  the  substitute. 

Mr.  Nicoll  —  Mr.  Chairman,  the  substitute  proposed  by  me  was 
an  amendment  to  the  amendment  proposed  by  Mr.  Green,  Mr.  Spen- 
cer having  withdrawn  his  amendment  in  order  to  enable  me  to  pro- 
pose my  substitute,  so  is  the  motion  now  not  open  to  amendment. 

The  Chairman  —  If  that  is  the  form  of  the  amendment,  it  is  proper 
to  vote  upon  the  substitute  or  the  amendment  to  the  amendment  of 
Mr.  Green  in  the  first  instance. 

Mr.  Vedder  —  I  would  ask  to  have  it  read. 


736  REVISED  RECORD.  [Friday, 

The  Secretary  read  the  amendment. 

Mr.  Vedder  —  Clearly  Mr.  Nicoll's  substitute  covers  that. 

Mr.  Nicoll  —  It  includes  it,  of  course. 

Mr.  Mereness  —  Mr.  Nicoll  offers  his  as  an  amendment,  inas- 
much as  Mr.  Spencer  withdrew  his. 

The  Chairman  —  The  Chair  has  so  stated. 

Mr.  Mulqueen  —  Mr.  Chairman,  we  are  now  in  the  position  that 
we  have  proclaimed  so  much  against  the  Legislature's  occupying, 
of  being  asked  to  vote  upon  a  bill,  as  we  are  asked  to  vote  upon 
this.  I  believe  that  this  matter  ought  to  be  printed,  and  that  we 
can  hold  a  session  to-morrow  morning  and  vote  upon  it.  I,  there- 
fore, move  that  the  committee  rise,  report  progress  and  ask  leave 
to  sit  again.  I  do  not  care  whether  I  stand  alone  on  that,  Mr.  Chair- 
man, I  make  that  motion. 

Mr.  Mereness  —  Mr.  Chairman,  let  me  call  the  attention  of  the 
committee  to  the  fact  — 

The  Chairman  —  The  Chair  holds  that  this  question  is  not 
debatable. 

The  Chairman  then  put  the  question  on  the  motion  of  Mr.  Mul- 
queen, that  the  committee  rise,  report  progress  and  ask  leave  to  sit 
again,  and  it  was  determined  in  the  negative. 

The  Chairman  —  The  question  is  upon  the  amendment  to 
Mr.  Green's  amendment  offered  by  Mr.  Nicoll. 

The  Secretary  again  read  the  proposed  amendment. 
Mr.  Vedder  —  I  hope  that  amendment  will  be  adopted. 

The  Chairman  then  put  the  question  on  the  amendment,  and  it 
was  determined  in  the  affirmative. 

Mr.  Mereness  —  Mr.  Chairman,  I  move  that  the  committee  rise 
and  report  to  the  Convention,  with  a  recommendation  that  this 
proposed  amendment,  as  amended,  be  adopted  by  the  Convention. 
Mr.  Dean  —  Mr.  Chairman,  I  rise  to  a  point  of  order  — 
Mr.  Vedder  —  Mr.  Chairman,  I  hope  the  gentlemen  will  with- 
draw his  point  of  order.     I  do  not  understand  that  the  amendment 
is  perfected  yet,  so  that  it  may  go  to  the  Convention.     We  have 
another  amendment  to  vote  upon,  as  amended  by  Mr.   Nicoll's 
motion. 

The  Chairman  —  Mr.  Vedder's  point  of  order  is  well  taken,  and 
the  question  is  upon  the  amendment,  as  perfected,  which  will  be 
Mr.  Green's  amendment,  as  amended  by  Mr.  Nicoll.  It  perfects  the 


August  17.]  CONSTITUTIONAL  CONVENTION.  737 

amendment  and  a  vote  of  aye  will  recommend  it  to  the  Convention ; 
a  vote  of  no  will  be  the  reverse. 

Mr.  Vedder  —  I  understand  now,  Mr.  Chairman,  that  a  vote  of  aye 
means  that  Mr.  Green's  amendment  is  amended  so  as  to  come 
entirely  and  absolutely  within  the  provisions  of  the  amendment  of 
Mr.  Nicoll,  and  that  the  amendment  will  stand  so  amended  by  voting 
aye. 

The  Chairman  —  That  is  the  understanding  of  the  Chair. 

The  Chairman  then  put  the  question  on  Mr.  Green's  amendment, 
as  amended  by  the  proposition  of  Mr.  Nicoll,  and  it  was  deter- 
mined in  the  affirmative. 

Mr.  Crosby  —  I  attempted  to  get  recognition  of  the  Chair  to 
know  what  the  proposition  was  that  we  were  voting  upon.  It  is 
absolutely  impossible  to  hear  a  single  word  read  by  the  Secretary, 
and  may  I  hear  it  read  now? 

The  Chairman  —  The  Secretary  will  again  read  the  amendment 
that  has  been  voted  upon. 

Mr.  Mereness  —  Mr.  Chairman,  I  make  the  point  of  order  that  it 
is  of  no  consequence  to  have  it  read  after  it  has  been  adopted  in  the 
committee. 

Mr.  Crosby  —  I  call  for  the  reading  of  the  proposition  as 
amended,  then,  asking  for  information. 

The  Secretary  again  read  the  amendment  as  follows: 
"  No  extra  compensation  shall  be  granted  to  any  public  officer, 
servant  or  agent  of,  or  contractor  with,  the  State  or  any  civil 
division  thereof,  nor  shall  the  salary  or  compensation  of  any  public 
officer  be  increased  or  diminished  during  the  term  for  which  he  was 
elected  or  appointed." 

Mr.  A.  B.  Steele  —  Mr.  Chairman,  I  desire  to  vote  upon  this 
intelligently,  and  for  that  reason  I  want  to  ask  a  question  of  either 
the  proposer  of  the  amendment  or  of  the  bill.  Is  the  scope  of  this 
such  that  even  a  village  or  a  town  is  prohibited  from  voting  extra 
compensation  to  an  officer? 

Mr.  Nicoll  —  That  is  in  the  Constitution  now,  is  it  not? 

Mr.  Steele  —  No,  sir.  In  other  words,  if,  by  any  act  of  a  munici- 
pality, an  officer  who  is  acting,  has  his  duties  doubled,  the  amount 
of  work  that  he  is  to  perform  doubled,  and  they  vote  to  compensate 
him  according  to  his  extra  work,  that  is,  vote  to  give  him  extra 
compensation,  that  would  be  illegal,  and  under  the  Code  — 

»•        47 


738  REVISED  RECORD.  [Friday, 

Mr.  Mereness  —  Mr.  Chairman,  I  rise  to  a  point  of  order.  There 
is  no  question  before  the  House. 

The  Chairman  —  The  point  of  order  is  well  taken. 

Mr.  Steele  —  Is  not  the  question  before  the  House  of  debating 
this? 

Mr.  Acker  —  I  move  you,  sir,  that  the  committee  do  now  rise 
and  report  this  proposition  and  recommend  its  passage. 

Mr.  Peck  —  Mr.  Chairman,  I  rise  to  a  point  of  order.  We  have 
adopted  two  amendments.  Now,  we  have  not  adopted  the  pro- 
posed constitutional  amendment,  as  amended. 

Mr.  Steele  —  Is  not  the  question  of  adoption  of  this  proposed 
amendment  debatable? 

The  Chairman  —  It  is. 

Mr.  Steele  —  That  is  what  I  supposed.  I  was  addressing  myself 
to  that.  It  seems  to  me,  Mr.  Chairman  and  gentlemen,  that  while 
we  are  attempting  to  accomplish  a  good  thing,  we  are  going  a  great 
way  to  tie  the  Legislature,  to  tie  the  people,  so  that  they  cannot 
grant  extra  compensation  to  an  employe,  to  an  officer,  although 
that  officer  has  extra  work  to  do.  Will  the  people,  Mr.  Chairman, 
approve  of  action  of  that  kind? 

Mr.  McKinstry  —  Mr.  Chairman,  I  was  very  glad  to  hear  the 
President  of  this  Convention  protest  against  this  violation  of  the 
principle  of  home  rule,  in  saying  that  the  trustees  of  every  little 
village,  in  Chautauqua  county,  for  instance,  cannot  do  as  they 
choose  with  their  little  local  officers  there,  living  right  among  the 
taxpayers  and  responsible  to  them.  They  have  a  right,  a  moral 
right,  to  do  as  they  choose  with  their  local  officers.  It  is  a  ridicu- 
lous interference  with  every  little  branch  of  the  State,  and,  I  would 
say  also,  our  boards  of  supervisors,  so  far  as  they  fix  their  salaries, 
are  responsible  to  the  taxpayers  of  the  county  and  they  are  apt  to 
do  the  right  thing.  Now,  the  root  of  this  evil,  gentlemen,  is  in  hav- 
ing the  salaries  of  county  officers  fixed  here  at  Albany.  That  is 
where  the  trouble  is,  and  that  is  what  the  people  of  Chautauqua 
county  complain  of.  If  the  board  of  supervisors  fixes  the  salaries 
of  officers  that  are  paid  by  the  county,  there  will  be  no  difficulty 
in  this  matter.  What  we  complain  of  is  that  county  officers  come 
here  to  Albany,  surreptitiously  sometimes,  having  a  "  pull "  with 
members  or  Senators,  and  getting  salaries  raised  against  our  wishes. 
What  would  suit  me  far  better  would  be  to  amend  section  18  of  this 
article,  where  it  forbids  the  Legislature  creating,  increasing  or 
decreasing  fees,  percentages  or  allowances  of  public  officers 


August  17.]  CONSTITUTIONAL  CONVENTION.  739 

during  the  term  for  which  said  officers  are  elected  or 
appointed.  Simply  put  in  the  word  "  salaries ''  there,  so 
as  to  cut  off  this  running  down  to  Albany  and  getting  the  county 
judge's  and  surrogate's  salaries  increased,  which  would  suit  me  a 
great  deal  better. 

Mr.  Crosby  —  As  I  understand  the  question,  Mr.  Chairman,  there 
was  an  amendment  to  the  main  proposition,  and  that  main  proposi- 
tion is  now  before  the  committee  and  open  for  discussion.  I  am 
opposed  to  this  proposition:  First,  because  it  is  in  conflict  with  the 
principle  of  home  rule  of  the  local  municipalities.  This  Convention 
has  been  struggling  for  days,  and  the  committee  for  weeks,  to  sub- 
mit a  proposition  to  the  people  which  will  give  home  rule  to  cities, 
and  we  should  not  put  ourselves  in  the  inconsistent  position  of 
granting  what  we  call  home  rule  to  cities,  which  I  favor,  and  pro- 
hibiting municipalities  from  regulating  their  own  affairs.  I  am 
opposed  to  it  upon  another  ground.  That  is,  the  increase  of  the 
business  of  the  State  and  of  localities,  the  multiplication  of  the 
responsibilities  which  are  placed  upon  public  officers,  and  especially 
upon  the  judiciary,  during  a  long  term  of  office,  increasing  their 
labors,  gives  a  just  and  equitable  demand  for  fair  compensation  for 
such  increased  duties.  I  am  opposed  to  it  upon  another  ground, 
and  that  is  that  it  is  not  the  province  of  any  particular  body  of  men 
to  assume  that  they  possess  all  the  honesty,  virtue  and  judgment 
that  exists  in  the  land.  A  tendency  on  the  part  of  this  Convention 
has  plainly  manifested  itself  to  so  treat  the  Legislature  that  it  must 
go  to  the  people  of  the  State  that  this  Convention  does  not  regard 
the  Legislature  of  the  State  of  New  York  as  an  intelligent,  respon- 
sible or  honest  body  to  take  charge  of  the  questions  which  naturally 
go  to  the  Legislature  from  the  people.  I  am  opposed  to  it  on  a 
still  further  ground.  I  have  in  my  mind  an  instance  of  an  ambitious 
young  man  who  went  to  the  Legislature  and  procured  a  decrease, 
a  diminution  of  the  salary  of  an  office,  two-thirds  of  what  was  being 
paid  at  a  reasonable  compensation,  for  the  purpose  of  enabling  him 
to  become  a  candidate  for  that  office,  and  virtually,  by  offering  a 
bribe  in  that  manner,  secured  the  votes  of  the  people  to  elect  him 
to  that  office.  And,  if  we  are  not  to  permit  the  Legislature  to 
correct  such  a  wrong  act,  then  I  say  the  Constitution  should  be 
amended  to  prohibit  the  Legislature  from  decreasing  the  salary  of 
any  office,  and  leave  it,  as  fixed  by  this  Constitution,  and  the  law, 
is  it  now  stands.  It  was  the  province  of  the  Legislature  of  the  State 
of  New  York,  at  its  last  session,  to  raise  the  salary  of  the  county 
judge  of  the  county  in  which  I  reside  back  to  what  it  had  been 
fixed  by  a  former  Legislature,  and  now  he  is  not  compensated  a 


740  REVISED  RECORD.  [Friday, 

dollar  more  than  he  should  receive  for  his  services;  and  that  there 
may  be  no  mistake  about  the  position  I  occupy  here  as  an  individ- 
ual, independent  of  the  propositions  I  have  stated,  I  want  it  clearly 
understood  that  I  say  the  Legislature  did  right  in  that  act. 

Mr.  Burr  —  I  offer  the  following  amendment,  if  it  is  in  order, 
Mr.  Chairman,  to  substitute  — 

Mr.  Acker  —  I  rise  to  a  point  of  order.  A  motion  has  been 
made  to  report  to  the  Convention,  and  amendments  are  now  out 
of  order. 

Mr.  Burr  —  The  Chair  has  already  ruled  that  debate  is  in  order, 
and  I  assume  that  while  debate  is  in  order,  an  amendment  is  proper. 

The  Chairman  —  The  Chair  holds,  according  to  the  rules,  that 
although  debate  is  in  order,  amendments  are  not  in  order. 

Mr.  Burr  —  Then,  Mr.  Chairman,  while  I  am  on  my  feet,  I  desire 
to  call  the  attention  of  the  Convention  to  this  fact,  that,  in  my 
opinion,  this  is  not  a  fair  amendment.  It  is  not  a  just  amendment. 
The  Legislature  still  has  the  power,  I  believe,  to  abolish  offices.  The 
Legislature  still  has  the  power  to  increase  the  duties  of  existing  offi- 
cers, and,  if  we  wanted  to  be  fair,  we  should  have  an  amendment 
which  would  read  that  the  salary,  compensation  and  duties  of  pub- 
lic officers  was  not  to  be  increased  or  diminished  during  their  term 
of  office.  It  means  one  thing,  apparently;  it  really  means  another. 
It  stands  in  the  way  of  the  very  object  which  those  who  vote  in  its 
favor  seek  to  accomplish.  Suppose  the  Legislature,  desirous  of 
economizing  the  public  funds,  abolishes  one  office  and  says  that 
the  duties  of  that  office  shall  thereafter  be  performed  by  another 
officer  then  in  existence,  and  who  may  have  six  years  to  run.  Is 
it  fair  to  say  that  the  Legislature  may  impose  and  place  upon  that 
officer  this  extra  duty,  this  great  duty  which  he  never  had  foreseen 
when  he  took  the  office,  and  yet  refuse  to  the  Legislature  the  power 
to  increase  his  salary  or  his  compensation?  And,  I  think,  as  I  have 
said,  gentlemen,  that  if  you  want  to  be  fair,  and,  if  this  amendment 
is  desired  to  be  logical,  the  duties  of  the  office  should  remain  the 
same  after  a  man  has  assumed  them. 

Mr.  Choate  —  Mr.  Chairman,  I  would  like  to  say  one  word  more, 
before  the  committee  commits  itself  to  this  amendment  in  its  present 
form,  which  seems  to  me  to  be  fraught  with  mischief  and  will  be 
likely  to  excite  great  hostility  among  the  people.  I  differ  entirely 
from  the  gentlemen  near  me  who  have  said  that  there  could  not 
be  a  more  popular  amendment  introduced  into  the  Constitution. 
So  far  as  I  have  heard  in  the  discussion  thus  far,  it  is  apparent 
that  the  local  authorities,  who  up  to  this  time  have  had  charge  of 


August  17.]  CONSTITUTIONAL  CONVENTION.  741 

the  matter,  have,  in  the  main,  been  faithful  to  their  trusts.  If  there 
has  been  all  this  clamor  on  the  part  of  every  office  holder  in  the 
rural  districts,  as  soon  as  he  got  into  office,  to  have  his  pay 
increased,  it  is  very  remarkable  that  none  of  the  advocates  of  this 
measure  can  point  to  any  specific  instance  where  a  board  of  super- 
visors, or  other  local  board  having  the  matter  in  charge,  has  unjustly 
advanced  his  salary  during  his  term  of  office.  And  that  emphasizes 
the  point  I  made  this  morning,  that  it  is  an  unwarrantable  invasion 
of  the  authority  of  local  communities,  to  take  care  of  their  own 
affairs  in  relation  to  the  details  of  domestic  economy. 

Another  point.  Every  city,  every  village  and  every  town  are  con- 
stantly making  contracts,  the  exact  operation  of  which,  as  to  fairness, 
upon  the  one  side  or  the  other,  cannot  be  predetermined.  Now, 
this  is  a  prohibition  against  fair  dealing  by  any  such  community 
with  any  such  contractor,  and  might  enable  such  a  small  community 
to  get  ten  times  the  value  out  of  a  contractor,  as  it  may,  in  the  case 
instanced  by  Mr.  Steele,  enable  the  Legislature  to  double,  quad- 
ruple or  multiply  ten  times  the  duty  of  a  local  officer,  and  yet  not 
permit  the  community  which  is  to  have  the  benefit  of  those  services 
to  make  adequate  compensation  to  the  officer.  I  hope  gentlemen 
will  hesitate,  consider  carefully,  before  they  commit  themselves 
finally  to  this  amendment. 

Mr.  Jacobs  —  Mr.  Chairman,  I  do  not  think  that  Mr.  Choate  has 
ever  filled  the  office  of  local  legislator.  If  he  had,  he  would  not 
challenge  quite  so  freely.  Being  challenged  to  give  instances  in 
which  salaries  have  been  unduly  increased,  I  can  say  —  I  do  not 
speak  with  any  pride  in  the  matter  —  that  for  four  years  I  have  had 
an  experience  in  trying  to  prevent  just  that  sort  of  thing.  Men  who 
did  not  do  anything  but  open  and  shut  a  door  one  hour  in  a  day 
had  their  salaries,  just  on  the  eve  of  an  important  local  election, 
increased,  and  the  suspicion  always  was  that  it  was  for  the  benefit 
of  certain  local  election  funds;  and  that  has  been  going  on,  year 
after  year,  in  our  city;  and  I  apprehend  in  other  towns  and  in  other 
cities.  I  won't  say  there  was  the  same  motive.  And,  if  the  city 
of  Brooklyn  or  the  city  of  New  York  is  still  a  part  of  the  State 
of  New  York,  I  think  our  rural  friends,  however  honest  they  may 
be,  ought  to  come  to  our  assistance;  and,  while  I  have  sat  here 
silently  through  all  these  weeks  and  wearisome  months,  it  has 
occurred  to  me  that  there  is  a  distinct  sentiment  among  our  friends 
that  they  do  not  seem  to  care  particularly  what  does  happen  or  does 
not  happen  in  the  city  of  New  York  or  Brooklyn,  and  that  if  we 
have  ills  down  there,  or  evils,  we  better  be  allowed  to  stew  in  our 
own  juice.  Now,  I  appeal  to  them  that  we  also  are  a  part  of  the 


742  REVISED  RECORD.  [Friday, 

State  of  New  York.  We  have  abuses  and  evils  down  there  that 
we  cannot  contend  with,  and  while  there  may  be  a  healthy,  and  I 
have  no  doubt  is,  a  healthy  sentiment  in  the  towns,  because  every- 
body knows  everybody,  and  a  majority  of  the  voters  there  are  more 
or  less  directly  interested  in  taxation,  the  cities  of  New  York  and 
Brooklyn  are  widely  different.  Very  few  of  the  people  in  Brooklyn 
are  taxpayers.  I  think  out  of  a  million  inhabitants  that  are  there, 
there  are  only  seventy-five  thousand  people  who  actually  and 
directly  pay  taxes,  and  the  great  mass  have  no  idea  of  what  the 
taxation  is,  and  they  do  not  care.  Their  landlord  pays  the  taxes, 
and  that  is  quite  a  great  deal  of  satisfaction  to  them.  Xow,  I  want 
to  come  back  to  the  main  subject.  If  we  are  entitled  in  this  Con- 
vention to  the  consideration  of  our  rural  friends,  we  ask  them  to 
pay  the  same  attention  to  our  affairs  that  we  have  been  paying  to 
their  affairs.  We  have,  year  after  year,  and  for  the  purpose  of 
enlarging  political  campaign  funds,  salaries  increased  —  why,  I  have 
seen  in  one  day  salaries  jump  $25,000  for  men  who  performed  only 
the  service  of  one  hour  a  week  —  one  man  who  simply  —  well,  he 
didn't  open  the  door  even;  everybody  opened  the  door  for  him- 
self; he  shut  it  when  they  went  out;  and  he  was  jumped  from  $1,000 
to  $1,800  a  year;  and  I  do  not  believe  the  poor  little  fellow  got  one 
cent  of  that  increase. 

Mr.  Choate  —  Mr.  Chairman,  I  would  like  to  ask  the  gentleman 
whether  that  was  in  Brooklyn? 

Mr.  Jacobs  —  That  was  in  Brooklyn. 

Mr.  Choate  —  I  should  have  excepted  Brooklyn. 

Mr.  Jacobs  —  You  should,  sir.  And  now  as  to  contracts.  We 
all  know  how  contracts  are  made  up,  and  they  are  always  made  up 
with  two  views.  That  is,  I  am  speaking  now  of  the  cities.  I  know 
nothing  about  the  rural  towns.  As  I  said,  contracts  are  made  with 
two  views.  If  the  right  man  gets  the  contract,  there  are  always 
extras,  and  the  contracts  are  drawn  so  that  the  engineer  or  those 
in  charge  can  order  extra  work.  But,  if  the  wrong  man  gets  the 
contract,  his  work  is  always  found  to  be  incorrect.  Now,  I  appeal 
to  our  country  friends  to  come  to  our  rescue.  We  are  down  there, 
not  in  a  community  of  taxpayers  and  people  who  know  one  another, 
but  in  a  great  congregation  of  a  million  of  people,  where  the  resident 
in  the  block  hardly  knows  his  next-door  neighbor,  and  we  cannot 
have  that  healthy  public  supervision  of  our  local  affairs  such  as 
they  have  in  the  towns.  We  want  this  amendment,  and  I  think 
every  man  in  Brooklyn,  from  Kings  county,  ought  to  vote  for  it, 
because  we  know  what  the  evil  is;  I  take  the  testimony  of  the 


August  17.]  CONSTITUTIONAL  CONVENTION.  743 

gentlemen  from  the  interior  —  they  are  all  honest;  I  am  glad  to 
hear  it. 

Mr.  McDonough  —  Mr.  Chairman,  I  would  like  to  give  the  Presi- 
dent an  example.  A  few  years  ago  the  city  of  Albany  had  a  cor- 
poration counsel  who  was  a  very  bright  man.  His  salary  was  $3,000 
a  year.  He  conceived  the  idea  of  forming  a  partnership  with 
another  eminent  lawyer,  and  he  resigned  his  office  as  corporation 
counsel.  The  gentleman  that  attends  to  such  matters  for  us  here 
sent  up  and  had  the  salary  increased  to  $6,000  a  year,  and  appointed 
the  other  man  to  the  office,  and  the  two  lawyers  formed  a  partner- 
ship and  got  their  $6,000  a  year. 

Mr.  Moore  —  Is  he  dead? 

Mr.  McDonough  —  They  are  both  living  and  holding  office  yet. 
Now,  our  experience  is  that  political  debts  are  paid  by  sending 
up  here  to  the  local  members  of  the  Legislature  and  having  salaries 
increased.  They  say  that  the  people  ought  to  come  up  here  and 
stop  it.  Why,  we  cannot  stop  it.  The  winter  before  last  we  had 
our  board  of  education  abolished.  We  elected  our  board  by  popu- 
lar vote.  They  abolished  the  board  in  spite  of  the  people  of 
Albany,  and  had  a  board  appointed  by  one  man.  We  elected  our 
police  commissioners,  and  one  man  sent  up  here  and  had  that 
•board  abolished,  and  we  elect  them  no  more.  One  man  appointed 
every  one  of  them.  It  is  ridiculous  for  us  here  in  Albany  to  come 
to  the  Legislature  and  oppose  measures  that  certain  men  want, 
when  they  have  the  representatives  here.  We  can  do  nothing  with 
them ;  and  the  reason  is,  that  these  local  bills  are  passed  as  a  matter 
of  courtesy.  They  simply  say:  "  Why,  Albany  wants  this;  Syracuse, 
Buffalo,  Rochester  " —  it  is  not  any  one  city  — "  we  will  give  it  to 
Albany.  It  is  all  right;  those  men  want  it."  That  is  the  way  these 
measures  go  through  and  we  cannot  stop  them.  There  are  many 
examples  of  it.  The  coroners  here  had  their  salaries  increased 
within  two  or  three  years,  men  that  get  a  large  salary  for  doing 
nothing.  Yet  they  come  up  here  and  have  their  salaries  increased 
because  the  political  boss  says  it  is  a  proper  thing  to  do. 

Mr.  Tekulsky  —  Mr.  Chairman,  in  answer  to  the  gentleman  from 
Brooklyn,  or  Kings  county,  I  desire  to  say  that  I  am  a  resident  of 
New  York  city,  and  I  think  that  New  York  city  is  in  this  State;  and 
I  suppose  if  he  tries  very  hard,  he  will  find  that  Kings  county  is  also 
in  this  State.  The  evils  of  Kings  county  I  know  nothing  about, 
but  the  evils  that  he  speaks  of,  and  in  relation  to  which  he  continu- 
ally connects  New  York  with  Kings  county,  I  have  never  heard  of 
them,  there  is  no  such  things  as  he  pictures  here  in  New  York  city, 


744  REVISED  RECORD.  [Friday, 

about  the  increase  of  salaries  for  the  purpose  of  making  political 
capital.     (Laughter.) 

Mr.  Moore  —  How  about  the  perquisites  to  contractors  which 
he  speaks  of  in  New  York  city? 

Mr.  Tekulsky  —  I  have  not  got  to  that  yet.  ,  I  will  get  to  that  by 
and  by.  Now,  Mr.  Chairman,  I  am  a  great  believer  in  home  rule, 
and,  as  long  as  I  am  a  believer  in  home  rule,  and  where  local  author- 
ities have  not  taken  undue  advantages  of  the  people  I  believe  in 
letting  it  remain  there,  and  giving  them  as  much  home  rule  as  we 
can.  (Applause.)  As  to  the  abuses  of  raising  salaries,  I  have  not 
heard  of  any  abuses  of  that  kind  in  New  York  county.  There 
have  been  salaries  raised  in  New  York  county  because  of  increase 
of  labor.  New  York  city  has  grown  since  I  have  lived  there, 
for  twenty-four  years  —  has  grown  in  the  neighborhood  of  a  million 
in  population,  and  you  cannot  expect  that  men  who  were  elected  to 
office  for  the  term  of  ten  or  fourteen  years,  as  some  of  the  judges 
have  been  elected  there,  will  not  have  more  labors  to  perform  now 
than  they  did  then;  and  why  should  this  amendment  prevail 
to-day,  when  it  is  unnecessary,  when  the  local  authorities  can 
attend  to  that  matter  when  it  is  necessary,  and  can  come  to  the 
Legislature,  if  it  is  necessary.  The  local  authorities  will  always 
have  something  to  say,  especially  if  Mr.  Jesse  Johnson's  home  rule 
measure  passes  here. 

Mr.  Vedder  —  Mr.  Chairman,  in  answering  the  President,  who 
denounces  this  bill,  I  desire  to  say  that  he  denounces  with  it  the 
Constitution,  as  it  is  now,  with  the  exception  of  the  insertion  of 
the  word  "salary."  I  understand  him  to  say  in  denouncing  this 
measure  that  he  denounced  substantially  what  is  in  the  Constitution 
now,  by  saying  that  we  ought  not  to  pass  any  constitutional  amend- 
ment here  that  would  prevent  local  authorities  from  giving  compen- 
sation, and  extra  compensation,  and.  so  forth,  for  extra  work. 

Mr.  Choate  —  On  the  contrary,  I  am  entirely  satisfied  with  the 
Constitutional  provision  as  it  now  is,  and  think  that  it  goes  far 
enough,  although  the  Convention  of  1867  thought  it  went  altogether 
too  far  and  struck  out  a  good  deal. 

Mr.  Vedder  —  This  amendment  to-day,  as  I  understand  it,  only 
goes  a  step  further,  and  includes  what  was  intended  by  the  present 
provisions,  to  wit,  that  it  should  include  a  prohibition  against 
increasing  salaries  during  the  term  of  office  for  which  a  person 
was  elected.  It  may  have  seemed  strange  to  gentlemen  that  the 
President  should  not  have  known  of  all  these  things  that  Mr.  Nicoll, 
who  lives  in  the  city  of  New  York,  has  spoken  of,  the  abuses  in 


August  17.]  CONSTITUTIONAL  CONVENTION.  745 

that  city;  and  living  just  across  the  river  from  that  other  great  city 
of  Brooklyn,  that  he  should  not  have  known  of  the  abuses  which 
have  existed  there  for  years.  The  trouble,  I  think,  with  the  Presi- 
dent, is  that  in  the  city  of  New  York  he  occupies  a  unique  position. 
He  is  a  good  lawyer  and  attends  to  his  business  there;  pays  very 
little  attention  to  politics,  and  for  years  has  been  sleeping  in  a  storm 
and  dreaming  of  a  calm,  politically  speaking.  (Laughter.)  I  move 
that  this  committee  do  not  rise,  report  this  proposition  to  the  Con- 
vention, and  ask  leave  to  sit  again. 

Mr.  Mul queen  —  My  attention  has  been  called  to  the  fact, 
Mr.  Chairman,  that  we  have  not  a  quorum. 

Mr.  Vedder  —  This  is  the  same  motion  that  was  already  pending 
and  declared  to  be  debatable. 

The  Chairman  —  The  Chair  misunderstood  the  motion.  It  is 
debatable,  and  the  Chair  recognizes  Mr.  Putnam. 

Mr.  Putnam  —  Mr.  Chairman,  from  what  I  have  heard  on  this 
floor  I  judge  that  only  the  evil  that  men  do  or  legislative  bodies  do 
lives  after  them.  Apparently  there  is  no  good  thing  in  any  of  our 
boards  of  supervisors,  in  any  of  our  Legislatures,  in  any  of  our  com- 
mon councils,  or  in  any  of  those  bodies  who  have  the  right  to  fix 
salaries.  Now,  Mr.  Chairman,  I  believe  that  it  would  be  unwise 
in  the  extreme  to  insert  any  provision  in  the  Constitution  which 
would  prevent,  if  the  city  of  Buffalo  desires  to  do  so,  that  city  from 
increasing  the  salaries  of  those  who  are  in  its  fire  department. 
I  will  say:  suppose  that  the  patrolmen  on  the  police  force,  who 
to-day  work  eight  hours,  should,  by  rules  and  regulations,  be 
required  to  work  ten  or  eleven  hours  a  day,  would  there  not  be 
good  reason  with  that  increase  of  work  imposed  upon  them  to 
raise  the  salaries?  Should  you  go  on  in  all  the  different  branches 
of  civic  government,  in  clerkships;  take  the  medical  department  of 
the  city;  suppose  there  should  come  an  epidemic  of  some  kind 
or  character;  suppose  that  for  months  the  city  physician  should  be 
required  to  do  extra  and  hard  work.  As  it  is  to-day  in  the  city  of 
Buffalo,  the  city  physicians  receive  salaries  amounting  to  about 
$600  a  year.  They  do  comparatively  little,  but  they  may  be  called 
upon  to  do  a  great  deal;  and,  if  they  did,  it  would  be  no  more  than 
justice  to  compensate  them  for  that  extra  work.  Now,  Mr.  Chairman, 
I  think  that  if  we  are  opposed  to  imposing  responsibility  and  the 
duty  of  citizenship  and  of  legislative  responsibilities  upon  those 
whom  we  elect  to  our  different  boards  and  bodies  of  legislation, 
that  then,  logically,  it  becomes  our  duty,  as  delegates  to  this  Con- 
vention, to  do  away  with  all  these  different  bodies;  have.no  Legisla- 


746  REVISED  RECORD.  [Friday, 

ture  of  the  State  of  New  York;  make  a  provision  that  the  Gover- 
nor of  the  State  shall  appoint  half  a  dozen  men  to  attend  to  all  the 
duties  now  performed  by  the  Legislature.  I  cannot  conceive,  I 
cannot  believe,  that  any  man  who  thinks  of  this  matter  in  a  rea- 
sonable way,  can  come  to  any  other  conclusion  than  that  this 
question  should  not  now  be  reported  to  the  Convention  for  its 
action.  I  think  that  a  few  hours  more  of  rest,  and  a  few  hours  more 
of  thought  upon  the  proposition,  will  lead  members  to  feel  that 
they  do  not  wish  to  carry  out  the  logical  conclusion  of  this  proposi- 
tion, and  do  away  with  all  that  has  been  enacted  that  must  be  done 
away  with. 

Mr.  Mulqueen  —  Will  the  gentleman  permit  a  question? 

Mr.  Putnam  —  Certainly ;  I  will  be  very  pleased  to  have  the  gen- 
tleman from  New  York  put  to  me  some  questions. 

Mr.  Mulqueen  —  May  I  ask  the  gentleman  if  he  thinks  we  will 
understand  this  question  better  this  evening  or  to-morrow  than  we 
do  now? 

Mr.  Putnam  —  I  think  we  will  understand  it  much  better  to-mor- 
row, Mr.  Mulqueen.  I  believe  that  we  will  understand  it  better 
to-morrow. 

Mr.  Mulqueen  —  Why  do  you  think  so? 

Mr.  Putnam  —  Because  our  brains  are  now  tired,  and  we  have 
had  the  committee  work  to  do.  (Laughter.)  It  has  been  said  by 
one  of  the  great  philosophers  that  one  man  can  do  successfully  no 
more  than  three  hours  of  intellectual  labor  in  one  day  (laughter), 
and  I  commenced  early  this  morning.  I  attended  a  committee 
meeting  at  nine  o'clock.  I  have  been  on  the  qui  vive  ever  since. 

President  Choate  resumed  the  chair. 

The  President  —  Mr.  Putnam  will  continue  his  remarks  after  the 
recess. 

The  President  announced  that  the  Committee  on  Education  would 
meet  at  half-past  nine  o'clock  to-morrow  (Saturday)  morning,  and 
the  hour  of  five  o'clock  having  arrived,  the  Convention  stood  in 
recess  until  eight  o'clock  P.  M. 


August  17.]  CONSTITUTIONAL  CONVENTION.  747 

EVENING  SESSION, 
Friday  Evening,  August  17,   1894. 

The  Convention  resumed  its  session  at  eight  o'clock,  the  pending- 
business  being  the  consideration  by  the  Committee  of  the  Whole 
of  the  proposed  amendment,  378,  introduced  by  Mr.  Mereness. 
Mr.  Cookinham  in  the  chair. 

The  Chairman  —  Mr.  Putnam  has  the  floor. 

Mr.  Putnam  —  Again,  Mr.  Chairman,  I  feel  that  we  should  be 
satisfied  to  incorporate  into  the  Constitution  such  amendments  as 
seem  to  us  only  necessary,  because  of  changed  conditions  which 
a  half  century  has  wrought.  I  feel  that  there  are  many  proposed 
amendments  which  may  or  may  not  be  of  themselves  wise,  that  it 
would  not  be  well  to  incorporate  into  the  Constitution  now,  and  I 
feel  that  this  is  one  of  them.  I  feel  that  the  evil  is  not  so  great,  if 
it  exists  at  all,  as  complained  of,  that  makes  it  necessary  for  us 
now  to  act  on  this  matter.  I,  therefore,  move  that  the  committee 
rise  and  report  progress  and  ask  leave  to  sit  again. 

Mr.  Hedges  —  Mr.  Chairman,  I  rise  to  a  point  of  order. 

The  Chairman  —  The  gentleman  will  state  his  point  of  order. 

Mr.  Hedges  —  My  point  is  that  there  is  not  a  quorum  present. 

The  Chairman  —  The  Clerk  informs  the  Chair  that  there  are  only 
sixty-five  present,  and  that  is  not  a  quorum. 

Mr.  Acker —  I  ask  that  the  Clerk  count  again,  Mr.  Chairman,  as 
there  were  a  number  of  members  in  the  smoking-room  who  have 
come  in,  and  I  think  there  is  now  a  quorum  present. 

The  President  resumed  the  chair. 

Mr.  Dean  —  Mr.  President,  I  move  that  the  bar  of  this  Conven- 
tion be  closed. 

Mr.  Cookinham  —  Mr.  President,  the  Committee  of  the  Whole 
reports  that  there  is  not  a  quorum  present. 

The  President  —  The  President  hears  the  report  of  the  Com- 
mittee of  the  Whole,  and  the  Clerk  will  call  the  roll  of  members. 

Pending  the  roll-call,  Mr.  Dean  moved  that  the  further  calling 
of  the  roll  be  dispensed  with,  as  a  quorum  was  present. 

The  President  —  As  a  quorum  have  already  answered  to  their 
names,  Mr.  Cookinham  will  again  take  the  chair. 

Mr.  Cookinham  took  the  chair. 

Mr.  Putnam  —  Mr.  Chairman,  I  ask    leave    to    withdraw    my 


748  REVISED  RECORD.  [Friday, 

motion,  and  move  that  the  Committee  of  the  Whole  report  progress 
and  ask  leave  to  sit  again. 

The  Chairman  —  The  Chair  recognizes  Mr.  Fuller. 

Mr.  O.  A.  Fuller  —  Mr.  Chairman,  I  am  opposed  to  this  motion, 
because  I  believe  in  home  rule,  and  I  supposed  that  the  delegates 
from  our  great  cities  believed  in  home  rule  until  this  afternoon. 
They  came  here  wanting  this  Convention  to  give  them  an  amend- 
ment which  would  provide  home  rule  for  them,  and  this  afternoon 
they  came  in  here  and  asked  us  to  vote  for  an  amendment  which 
would  take  home  rule  from  our  great  cities.  I,  for  one,  believe 
this  amendment  would  work  great  injury  to  our  rural  districts. 
We  have  some  340  odd  incorporated  villages  in  our  State.  They 
all  have  their  village  government,  and,  I  believe,  they  should  have 
a  right  to  say  what  salaries  they  shall  pay  their  officials,  and  when 
to  increase  or  diminish  them.  I  know  that  in  our  own  county  ten 
years  ago,  if  this  amendment  had  prevailed,  it  would  have  worked 
great  injury.  That  was  when  oil  was  first  discovered  in  our  county. 
At  that  time  crime  increased  ten-fold.  The  district  attorney  of  the 
county  had  to  perform  ten  times  the  amount  of  duty  that  he  had 
before.  That  was  the  first  year  of  his  election.  The  board  of  super- 
visors that  convened  in  the  fall  raised  the  district  attorney's  salary, 
as  they  had  a  right  to  do,  and  as  it  was  their  duty  to  raise  it.  Now, 
I  believe  -that  the  board  of  supervisors  of  our  county  know  better 
than  this  Convention  when  to  increase  or  diminish  the  salaries  of 
the  county  officers.  I  would  say  to  the  city  delegates  that  before 
they  come  here  and  ask  this  Convention  to  give  them  home  rule 
they  had  better  go  back  to  their  cities  and  turn  the  corrupt  officers 
who  are  thus  burdening  the  taxpayers  out  of  office.  Therefore, 
Mr.  President,  for  these  reasons  I  am  opposed  to  this  amendment, 
because  I  believe  it  would  work  an  injury  to  the  rural  districts. 

Mr.  Dean  —  Mr.  Chairman,  as  a  member  of  the  Committee  on 
Legislative  Powers  and  Duties,  which  reported  favorably  upon  this 
proposition,  I  am  opposed  to  it.  My  recollection  now  is  that  I 
voted  in  support  of  the  proposition  in  the  committee,  because  I 
believed  it  to  be  necessary  to  give  effect  to  the  provision  already  in 
the  Constitution.  I  am,  however,  a  believer  in  the  largest  possible 
responsibility  upon  the  part  of  legislative  officers.  I  believe  in  home 
rule  within  well-defined  limits.  I  believe  that  the  salary  of  officers 
should  be  fixed  by  the  legislative  body  having  jurisdiction  of  the 
office.  I  am  willing  to  have  the  common  council  fix  the  salaries  of 
municipal  offices.  I  think  the  board  of  supervisors  should  have 
control  of  the  salaries  of  county  officials,  and  that  the  Legislatures 


August  17.]  CONSTITUTIONAL  CONVENTION.  749 

should  be  in  control  of  the  salaries  of  all  offices  within  its  own 
creation.  If  there  are  abuses  of  these  powers,  the  people  have  the 
power  to  correct  them,  and,  if  they  are  negligent,  they  deserve  to 
be  taxed  until  they  have  arrived  at  a  point  where  they  will  discharge 
their  duties  by  the  community.  The  present  provision  of  the  Consti- 
tution, forbidding  the  payment  of  extra  compensation  to  any  officer, 
agent  or  contractor,  is  disregarded,  and  it  is  unwise  and  inexpedient 
to  introduce  into  the  fundamental  law  of  the  State  provisions  which 
public  sentiment  will  not  sustain.  As  a  public  journalist,  I  have 
always  insisted  upon  all  officials  living  up  to  the  letter  and  the 
spirit  of  the  law,  and  in  many  instances  I  have  laid  myself  open  to 
severe  criticism  upon  this  point,  public  sentiment  being  strongly 
against  me.  A  case  in  point  I  will  mention.  Some  years  ago 
the  board  of  supervisors  of  Chautauqua  county  voted  two  hundred 
dollars  each  to  two  of  the  women  employed  in  the  county-house. 
They  had  been  very  diligent  in  the  discharge  of  their  duties;  they 
had  performed  services  not  required  of  them  by  the  perfunctory 
discharge  of  a  public  trust,  and  in. equity  and  in  justice  they  were 
fairly  entitled  to  the  money.  It  was,  however,  a  violation  of  the 
express  provision  of  the  Constitution,  and  I  felt  it  my  duty  to  call 
the  attention  of  the  people  of  the  county  to  the  fact.  The  only  result 
of  that  action  was  to  call  down  upon  myself  the  ill-will  of  the  people 
interested  in  the  transaction,  and  of  many  people  who,  not  appre- 
ciating the  motive,  supposed  that  I  had  taken  the  action  out  of 
pure  maliciousness.  I  believe  that  it  is  unwise  to  have  a  law 
which  public  sentiment  will  not  enforce.  It  is  certainly  against 
public  policy  to  have  a  provision  in  the  Constitution  which  operates 
so  unjustly,  which  public  sentiment  will  not  sustain  in  its  rigid 
enforcement.  And  for  this  reason  I  shall,  when  opportunity  affords, 
vote  against  this  proposition. 

I  believe,  Mr.  Chairman,  that  representative  government  cannot 
be  a  success  so  long  as  we  persist  in  the  assumption  that  the  people, 
through  their  responsible  representatives,  cannot  be  trusted  in  mat- 
ters of  detail.  In  dealing  with  questions  of  principle,  it  is  unwise, 
no  doubt,  to  trust  entirely  to  the  public  sentiment  of  the  day ;  popu- 
lar clamor  may,  for  the  moment,  lead  the  masses  astray,  but  we  must 
rely  upon  the  ultimate  patriotism  and  good  judgment  of  the  people, 
and  any  restriction  which  takes  it  out  of  a  power  of  a  representative 
body  to  do  justice,  can  have  no  other  effect  than  to  weaken  popular 
respect  for  the  law,  and  in  this  way  lay  the  foundation  for  trouble. 
It  is,  therefore,  not  only  the  duty  of  this  Convention  to  repudiate 
this  action,  but  to  annul  the  sections  which  seek  to  take  away  from 


750  REVISED  RECORD.  [Friday, 

the  people,  through  their  representatives,  the  power  to  do  that 
which  is  right  and  just. 

Mr.  Cochran  —  Mr.  Chairman,  just  prior  to  the  recess,  the  Presi- 
dent of  this  Convention  asked  if  any  delegate  would  cite  any  instance 
in  which  the  raising  of  salaries  had  been  an  abuse,  and  one  of  the 
gentlemen  from  Kings  stated  on  the  floor  of  this  Convention  that 
he  knew  of  a  number  of  instances  in  the  city  of  Brooklyn  in  which 
salaries  to  the  aggregate  amount  of  $25,000  had  been  raised  just 
prior  to  an  election,  and  that  he  thought  they  had  been  contributed 
to  election  funds;  that  he  had  been  in  the  board  for  four  years,  and 
that  he  believed  that  had  been  done  for  several  years  during  his 
term  of  office.  That,  sir,  was  such  a  startling  statement  to  me  that 
I  have,  since  the  adjournment  of  this  Convention,  taken  pains  to 
inquire  into  what  is  actually  the  fact,  and  I  find  that  during  the  time 
the  gentleman  was  a  member  of  the  board  of  supervisors  of  the 
county  of  Kings  the  only  raises  in  salaries  were  as  follows :  That  the 
counsel  to  the  board  was  raised  $2,000;  that  the  chief  clerk  was 
raised  $1,000;  that  the  assistants,  two  in  number,  were  raised  $500 
each;  the  clerk  to  the  surrogate,  $1,500;  the  superintendent  of  con- 
struction, $2,000,  and  a  lot  of  messengers  combined  were  raised 
$1,000.  That  makes  a  total  of  about  $8,500.  There  may  have 
been,  however,  here  and  there,  I  am  frank  to  admit,  some  small 
raises  of  possibly  $100  or  $200.  Now,  sir,  that  comprises  only  the 
salaries  which  were  raised,  and  the  total  amount  of  raise  during  the 
period  to  which  the  gentleman  referred,  and  I  am  sure  he  is  mis- 
taken and  has  confounded  the  total  amount  of  the  salaries  paid  and 
has  stated  that  as  being  the  amount  of  the  raise.  Now,  so  far  as 
the  raising  of  those  salaries  is  concerned,  it  may  be  fair  also  to  state 
that  they  were  not  raised  by  the  board  of  supervisors,  but 
that  the  board  of  supervisors  recommended  that  the  salaries  be 
raised  the  amounts  which  I  have  mentioned  and  that  the  board  of 
estimate,  which  was  made  up  of  the  several  county  officials,  then 
saw  fit,  after  inquiry  as  to  the  necessity  of  the  raise,  to  authorize 
the  proper  appropriation  to  be  made.  I,  for  one,  sir,  although  I 
may  not  be  as  old  as  my  friend  from  Kings,  have  never  yet,  with 
possibly  one  exception,  heard  of  an  increase  in  salary  which  was  not 
properly  and  justifiably  made.  It  seems  to  me  that  this  amendment 
should  not  prevail,  and  for  this  reason,  that  the  only  abuse  which 
it  seems  to  me  this  Convention  is  desirous  of  remedying  is  that  of  « 
the  undue  and  unjust  interference  by  the  Legislature  with  the  sal- 
aries of  city  and  county  officials.  Now,  we  have  pending  before 
this  committee  what  is  known  as  a  home  rule  for  cities,  and  one  of 
the  specific  provisions  of  that  proposed  amendment  is  that  the 


August  17.]  CONSTITUTIONAL  CONVENTION.  751 

Legislature  shall  not  have  any  right  to  interfere  either  by  raising  or 
diminishing  the  amount  of  salaries  of  any  of  those  officials,  and  if 
that  amendment  passes,  the  evil  which  it  is  so  desirous  to  have 
remedied  will  be  removed.  As  to  the  cities  raising  or  diminishing 
the  salaries  of  their  officials,  I  do  not  think  there  should  be  any 
prohibition  in  the  Constitution  against  that.  If  any  city  sees  fit  to 
raise  or  diminish  the  salaries  of  their  officials,  it  should  be  allowed 
to  do  so,  and  it  would  be  an  unjust  amendment  for  us  to  adopt 
which  would  prohibit  a  city  or  any  other  division  of  our  State  gov- 
ernment from  doing  with  the  salaries  of  its  officials  what  it  deems 
best  to  do.  It  seems  to-  me,  for  that  reason,  that  we  should  not 
at  this  time  adopt  this  amendment.  If,  later  on,  when  we  reject  the 
cities  amendment,  if  it  is  rejected,  why  it  may  then  become  advisable 
to  adopt  something  which  will  prohibit  the  Legislature  from  inter- 
fering with  the  salaries  of  the  officials,  but  until  that  time  arrives, 
I  submit  that  this  amendment  should  not  prevail. 

Mr.  Jacobs  —  Mr.  Chairman,  I  made  no  mistake  in  what  I  said. 
I  am  generally  pretty  careful  to  be  accurate  in  what  I  say,  and  I  do 
not  know  where  the  gentleman  (Mr.  Cochran)  got  his  information, 
nor  do  I  particularly  care.  I  know  I  speak  from  memory.  The 
gentleman  has  enumerated  some  instances  which  I  well  remember. 
Those  raises  in  salaries  amounted  to  $8,500,  according  to  his  own 
statement;  but  the  omissions  that  he  failed  to  supply  I  recall  per- 
fectly. The  salaries  of  the  clerks  in  the  district  attorney's  office 
were  raised;  the  salaries  of  the  clerks  in  the  county  treasury  office 
were  raised;  the  salaries  of  the  clerks  in  the  office  of  the  commis- 
sioner of  jurors  were  raised;  the  salaries  of  the  officials  in  the  County 
Court  and  in  other  courts  were  raised;  and  then  there  were  in  one 
day  some  eighteen  attaches  of  the  board  of  supervisors,  comprising 
keepers,  assistants,  custodians,  engineers,  firemen,  scrub  women, 
and  all  the  way  down  the  line,  were  raised,  and,  while  I  may  in 
round  figures  have  said  $25,000,  the  amount  may  have  been  a  little 
more  or  a  little  less,  but  it  was  about  substantially  as  I  have  stated. 
When  you  come  to  foot  up  the  total,  taking  the  $8,500,  which  the 
gentleman  has  admitted,  and  putting  the  rest  in,  you  will  see  it 
conies  very  close  to  $25,000.  The  last  thing  they  did  —  and,  I  think, 
it  was  the  last  time  I  had  the  pleasure  of  voting  against  one  of  those 
schemes  —  was  to  raise  the  salaries  of  those  eighteen  employes  in 
one  day. 

Mr.  C.  B.  McLaughlin  —  I  would  like  to  ask  Mr.  Xicoll  for  infor- 
mation, simply  that  I  may  vote  right  upon  this  question,  whether  or 
not  his  amendment  will  apply  to  policemen  and  firemen? 


752  REVISED  RECORD.  [Friday, 

Mr.  Nicoll  —  I  consider  policemen  and  firemen  as  public  officers, 
and  I  do  not  think  their  compensation  should  be  increased  during 
their  terms  of  office. 

Mr.  C.  B.  McLaughlin  —  Do  you  intend  this  amendment  to  apply 
to  them? 

Mr.  Nicoll  — Yes,  sir;  and  there  is  no  trouble  whatever  in  keeping 
their  ranks  filled  at  the  salaries  paid,  and  if  we  want  any  policemen 
or  firemen  we  can  get  them  at  the  same  price.  There  are  a  thou- 
sand applicants  at  the  present  time  for  every  vacancy  in  the  police 
and  fire  department. 

Mr.  Tekulsky  —  Mr.  Chairman,  I  wish  to  state  here  that  from  the 
record  of  the  civil  service  commission  of  New  York  county,  it 
appears  that  every  applicant  for  appointment  in  the  New  York  fire 
department  who  can  pass  the  civil  service  examination  is  generally 
appointed,  no  matter  who  he  is  or  what  he  is,  so  long  as  he  has 
passed  that  examination.  Now,  when  it  is  said  that  the  city  can  get 
anybody  and  everybody  to  become  firemen  in  New  York  county,  I 
say  that  it  is  not  so,  and  I  know  it  is  not  so.  I  know  that  people 
have  tried  to  pass  the  civil  service  examination  and  have  failed,  and 
they  could  not  be  appointed.  But  those  who  can  pass  are  as  a  rule 
appointed.  And  why?  Because  that  is  one  of  the  positions  where 
a  man  takes  his  life  in  his  hands  and  risks  it  at  almost  any  moment; 
he  is  the  protector  of  lives  and  property.  When  it  is  said  that  this 
amendment  will  cover  firemen,  I.  claim  that  this  amendment  ought  to 
be  voted  on  at  once  above  all  other  things.  When  it  is  said  that 
they  can  get  all  the  people  they  want  to  fill  positions  as  firemen  in 
New  York,  I  claim  that  is  not  so,  because  the  civil  service  records  of 
New  York  county  will  show  that  no  man  who  has  ever  passed  a 
civil  service  examination  has  failed  to  be  appointed,  who  desires  to 
be  sworn  in  as  a  fireman. 

Mr.  Marshall  —  Mr.  Chairman,  this  question  is  a  very  important 
one,  and  I  am  somewhat  surprised  to  hear  Mr.  Xicoll  claim  that  he 
understands  the  words  "  public  officer,"  as  contained  in  this  pro- 
posed amendment,  to  include  policemen  and  firemen.  We  should 
have  no  misunderstanding  upon  this  subject. 

Mr.  Choate  —  I  would  like  to  ask  Mr.  Marshall  a  question,  with 
his  permission. 

Mr.  Marshall  —  Certainly,  sir. 

Mr.  Choate  —  I  would  ask  what  classes  he  believes  to  be  embraced 
in  the  words  "  servants  or  agents?  " 

Mr.  Marshall  —  I  consider  that  a  policeman  or  a  fireman  is 
included  in  the  word  "  agent." 


August  17.]  CONSTITUTIONAL  CONVENTION.  753 

Mr.  Choate  —  They  are  there  in  your  amendment. 
Mr.  Marshall  —  They  are  in  the  present  Constitution. 
Mr.  Choate  —  Not  as  applied  to  this. 

Mr.  Marshall  —  Oh,  yes.  The  present  Constitution,  section  24, 
article  3,  reads  as  follows: 

"  The  Legislature  shall  not,  nor  shall  the  common  council  of  any 
city,  or  any  board  of  supervisors  grant  any  extra  compensation  to 
any  public  officer,  servant,  agent  or  contractor.'' 

The  proposed  amendment  introduced  by  Mr.  Nicoll  merely 
changes  the  language  so  that  it  reads: 

''  No  extra  compensation  shall  be  granted  to  any  public  officer, 
servant,  agent,  or  contractor  with  the  State  or  any  civil  division 
thereof." 

Now,  so  far  as  that  provision  is  concerned,  there  is  no  change 
except  in  phraseology  in  the  proposed  amendment  now  before  us 
for  consideration.  The  additional  words  which  have  been  inserted 
in  this  proposed  amendment  are:  "  nor  shall  the  salary  or  compensa- 
tion of  any  public  officer  be  increased  or  diminished  during  the  term 
of  office  for  which  he  was  elected  or  appointed." 

Now,  the  question  which  was  asked  was  whether  the  words 
"  public  officer,"  as  used  in  the  last  clause,  having  relation  merely 
to  the  subject  of  the  increase  or  diminution  of  compensation,  in  any 
way  includes  firemen  and  policemen.  I  claim  they  do  not.  It  has 
been  adjudged  that  they  do  not.  I  desire  to  call  attention  to  the 
case  of  the  trustees  of  the  Firemen's  Exempt  Fund  v.  Roome  (93 
N.  Y.,  113),  in  which  case,  I  believe,  the  President  of  this  Conven- 
tion was  counsel,  in  which  Judge  Finch  says,  speaking  of  the 
firemen  of  the  city  of  New  York: 

"  The  precise  relation  of  these  firemen  to  the  municipality  and  the 
State  is  not  easy  to  describe.  They  were  not  civil  or  public  officers 
within  the  constitutional  meaning,  and  yet  must  be  regarded  as  the 
agents  of  the  municipal  corporation.  Their  duties  were  public 
duties;  the  service  they  rendered  was  a  public  service;  their  appoint- 
ment came  from  the  common  council  and  was  evidenced  by  the 
certificate  of  the  city  officers:  they  were  liable  to  removal  by  the 
authorities  which  appointed  them ;  and  were  intrusted  with  the  care 
and  management  of  the  apparatus  owned  by  the  city.  They  were, 
at  least,  a  public  body,  and,  perhaps,  are  best  described  as  a  sub- 
ordinate government  agency." 

Again,  I  desire  to  call  attention  to  a  number  of  cases  which  are 
48 


754  REVISED  RECORD.  [Friday, 

collated  in  Throop  on  Public  Officers,  in  section  12  of  that  work,  in 
which  the  author  says,  citing  various  authorities : 

''  In  the  following  cases  it  has  been  held  that  the  particular  person, 
whose  status  was  in  question  in  each  case,  was  not  a  public  officer, 
either  generally  or  within  the  meaning  of  particular  statutory  or 
constitutional  provisions,  to  wit,  a  sheriff's  special  deputy,  a  member 
of  a  board  of  commissioners  to  fund  the  floating  debt  of  a  city,"  etc. 
He  cites,  People  v.  Pinckney  (32  N.  Y.,  377),  and  the  cases  which 
I  have  already  referred  to,  in  which  the  opinion  was  written  by 
Judge  Finch;  N.  Y.  Fire  Department  v.  Atlas  Steamship  Company 
(106  N.  Y.,  566);  Shanley  v.  Brooklyn  (30  Hun,  396),  and  Mangan 
v.  Brooklyn  (30  Hun,  396),  and  I  have  thought  it  important  to  have 
this  question  set  right,  because  if  this  provision  should  be  passed, 
there  ought  to  be  no  question  in  the  minds  of  any  of  us  as  to  what 
we  are  voting  upon.  The  fact  that  in  the  first  clause  we  speak  of 
"  public  officers,  servants  and  agents,"  and  in  the  latter  clause,  we 
speak  of  "  public  officers,"  and  not  of  servants  or  agents,  is  to  me 
conclusive  upon  the  interpretation  of  "  public  officers,"  and  certainly 
indicates  that  policemen  and  firemen  are  not  included. 

Mr.  Mulqueen  —  Mr.  Chairman 

Mr.  Mereness  —  Mr.  Chairman — 

The  Chairman  —  Mr.  Mulqueen  has  the  floor. 

Mr.  Mereness  —  I  was  about  to  make  a  motion,  which  I  think 
will  facilitate  this  matter. 

The  Chairman  —  The  Chair  recognized  Mr.  Mulqueen  first. 

Mr.  Mulqueen  —  If  I  thought  this  Convention  intended  to  refuse 
to  cities  home  rule  and  the  right  to  govern  themselves,  I  should 
favor  this  amendment.  The  evil  which  I  think  Mr.  Nicoll  had  in 
mind  was  to  prevent,  if  possible,  the  Legislature  from  increasing 
salaries  against  the  direct  protest  of  the  municipal  authorities.  It 
is  a  sad  state  of  affairs  that  a  Legislature  should  impose  a  burden 
upon  a  municipality  against  the  protest  of  the  local  authorities. 
But,  sir,  I  believe  that  this  Convention  intends  to  give  home  rule 
to  cities,  and,  that  being  so,  we  ought  not  to  interfere  with  or  impair 
that  self-government  by  cities  with  any  such  provision  as  this.  If 
the  Convention  refuses  to  give  home  rule  to  cities  and  absolute 
control  to  cities  over  their  local  affairs  in  the  matter  of  salaries  of 
officials,  then  I  will  be  prepared  to  vote  for  this  amendment,  but 
at  present  I  think  it  unwise,  and  I  do  not  think  it  ought  to  be 
adopted  in  advance  of  our  action  on  the  report  of  the  Cities 
Committee. 


August  17.]  CONSTITUTIONAL  CONVENTION.  755 

Mr.  Mereness  —  I  have  no  desire,  Mr.  Chairman,  to  have  anything 
put  into  the  Constitution  or  submitted  to  the  people  that  is  not 
entirely  proper.  It  seems  to  me,  sir,  that  this  matter  is  very  far- 
reaching.  It  has  been  thoroughly  discussed,  so  far  as  the  merits  of  it 
are  concerned,  and,  inasmuch  as  the  Committee  of  the  Whole  has 
adopted  a  substitute,  I  would  like  to  have  the  matter  go  back  to 
the  Convention  and  the  substitute  printed,  and  then,  upon  reflection, 
I  think  a  very  few  moments  will  suffice  to  enable  us  to  dispose  of 
the  matter  finally,  and  for  that  purpose  I  ask  that  the  committee  rise 
and  ask  leave  of  the  Convention  to  sit  again. 

Mr.  Nicoll  —  Will  you  withdraw  your  motion  for  a  moment? 

Mr.  Mereness  —  I  will  withdraw  it,  simply  to  allow  Mr.  Nicoll 
to  speak. 

Mr.  Nicoll — Mr.  Chairman,  if  this  body  of  men,  who  are  willing 
to  forsake  their  private,  personal  and  professional  engagements  to 
come  and  sit  in  this  Convention,  are  not  able  to  dispose  of  this 
question,  why  we  might  as  well  banish  it  from  the  deliberations  of 
this  Convention  forever.  We  have  with  us,  to-night  at  least,  the 
men  who  have  made  a  sacrifice  of  their  personal  and  public  engage- 
ments for  the  purpose  of  disposing  of  the  work  of  this  Convention. 
For  my  part,  sir,  I  propose  to  sit  here  until  the  labors  of  this  Con- 
vention are  at  an  end  for  the  purpose  of  disposing  of  its  business. 
We  ought  not  to  abandon  the  consideration  of  any  proposed  amend- 
ment simply  because  a  number  of  our  friends  think  differently 
from  ourselves  and  for  private  reasons  have  forsaken  our  delibera- 
tions for  the  purpose  of  performing  private  obligations  or  gratifying 
domestic  instincts. 

Mr.  Mulqueen — Will  the  gentleman  permit  a  question? 

The  Chairman  —  Mr.  Nicoll  has  the  floor.  Will  he  give  way  for 
a  question? 

Mr.  Nicoll  —  Oh,  I  will  give  way  for  any  question  from  anybody. 

Mr.  Mulqueen  —  If  the  motion  to  rise  and  report  progress  on 
this  matter  be  adopted,  I  would  ask  the  gentleman  whether  we  have 
not  other  amendments  which  may  well  occupy  the  attention  of  the 
Convention  for  the  remainder  of  the  evening? 

Mr.  Nicoll  —  Undoubtedly  there  is  enough  business  to  do,  but 
we  have  taken  this  matter  up  and  have  been  discussing  it  for  four 
hours  to-day,  and  we  might  as  well  get  through  with  it.  We  have 
been  here  since  three  o'clock  this  afternoon  talking  on  this  one 
subject.  Let  us  get  through  with  something  so  that  we  may  pass 
on  to  other  matters. 


756  REVISED  RECORD.  [Friday, 

Mr.  Mulqueen  —  Will  the  gentleman  permit  another  question? 

i 
Mr.  Nicoll  —  Yes. 

Mr.  Mulqueen  —  Do  you  want  this  Convention  to  adopt  a  reso- 
lution which  you  say  will  cover  policemen  and  firemen  when  the 
Court  of  Appeals  has  decided  otherwise? 

Mr.  Nicoll  —  Of  course  I  do,  and  I  will  tell  you  why  in  a  moment. 
What  is  the  use  of  postponing  this  until  next  week  and  then  taking 
it  up  after  we  have  all  forgotten  the  debate  of  this  afternoon? 

Here  is  a  very  simple  proposition  before  this  body  of  intelligent 
men,  ninety-one  in  number.  Are  we  not  able  to  dispose  of  it 
to-night.  If  we  are  not,  let  us  put  it  over  indefinitely,  or  until  the 
last  week  of  the  Convention.  I  have  sat  here  for  weeks  waiting  to 
get  something  disposed  of,  and  I  have  taken  up  a  very  small  share 
of  the  time  of  this  Convention,  and  now  that  we  have  come  on 
the  final  heat,  I  would  like  to  get  something  through  with.  The 
President  himself  has  said  that  we  have  only  a  very  few  days  left  in 
which  to  dispose  of  any  of  our  business.  Are  we  obliged  to  dis- 
pense with  conducting  business  simply  because  sixty-three  members 
have  got  excuses?  If  they  want  to  participate  in  the  deliberations 
of  this  Convention  let  them  remain  here  and  forsake  —  the  duty 
of  selling  land  at  the  fee  of  $50.  Now,  I  want  to  say  that  I  have  not 
the  slightest  interest  pro  or  con  in  the  result  of  this  amendment.  I 
care  nothing  what  happens  to  it  in  this  Convention.  If  you  choose 
to  say  that  salaries  shall  be  increased  indefinitely,  it  is -no  interest 
or  business  of  mine.  I  took  it  up  and  advocated  it  simply  because 
I  thought  there  was  a  principle  involved,  but  if  the  members  of  this 
Convention  do  not  think  there  is  any  principle  involved,  why,  decide 
against  it.  All  I  ask  you  to  do  for  me  is  to  listen  to  me  while  in 
a  few  brief  moments  I  state  the  principle  which  I  think  is  involved 
in  the  debate.  So  far  as  the  city  of  New  York  is  concerned,  I  take 
no  further  interest  in  it  except  as  any  taxpayer  or  citizen.  I  have 
held  all  the  offices  I  ever  expect  to  hold  in  the  city  of  New  York. 
I  have  got  through  holding  office  in  that  city,  either  legislative, 
executive  or  judicial.  I  have  held  all  the  offices  and  been  tendered 
all  the  nominations  that  I  ever  expect  to  be  tendered,  and  I  assure 
you  that  I  have  no  personal  interest  whatever  in  the  question  of 
holding  office  in  the  city  of  New  York,  and  I  beg  my  fellow-dele- 
gates in  this  Convention  to  at  least  accord  to  me,  when  I  infre- 
quently speak  to  this  body,  that  amount  of  independence.  I  have 
no  axe  to  grind,  no  interest  to  subserve,  no  man  to  please,  and  I 
care  not  whether  I  offend  any  man.  I  speak  simply  in  the  interest 
of  the  municipality  which  I  represent.  There  has  been  a  lot  of  talk 


August  17.]  CONSTITUTIONAL  CONVENTION.  757 

by  a  number  of  gentlemen  on  the  floor  of  this  Convention  about 
home  rule  in  the  city  of  New  York  and  in  the  city  of  Brooklyn,  and 
in  other  parts  of  the  State.  Before  the  Convention  concludes  its 
debates  it  will  be  found  that  there  is  no  more  sincere  and  earnest 
advocate  of  home  rule  for  cities  than  I  am.  But,  sir,  the  question 
of  home  rule  for  cities  is  not  concerned  in  this  amendment.  The 
question  of  home  rule  for  villages  and  towns  and  counties  is  not 
concerned  in  this  amendment.  This  proposed  amendment  leaves 
to  every  town,  to  every  village,  to  every  county  and  to  every 
municipality  in  the  State  the  right  to  choose  its  officers,  to 
prescribe  their  duties,  to  make  appropriations  for  their  labor, 
and  to  fix  their  salaries.  That  is  the  full  measure  of  home 
rule.  But,  after  you  have  done  that,  we  say  to  the  men  who 
are  candidates  for  office :  "  Under  the  laws  which  you  have  estab- 
lished, when  you  accept  an  office,  you  shall  receive  its  salary  and 
nothing  else  during  your  incumbency."  It  makes  no  difference 
whether  a  man  holds  an  office  under  the  State,  under  the  county, 
under  the  town,  or  under  the  village,  when  he  accepts  the  office 
and  assumes  its  obligations,  and  undertakes  to  discharge  its  duties, 
he  shall  receive  the  salary  and  nothing  else. 

What  question  of  home  rule,  pray,  is  involved  in  that  amendment? 
What  do  we  take  away  from  towns,  cities,  villages  or  counties? 
Nothing  whatever.  They  have  all  the  power  and  all  the  liberty  to 
divide  the  duties,  to  prescribe  them,  and  to  fix  salaries.  When  a 
candidate  appears  and  undertakes  to  accept  the  contract  which  is 
offered  him  by  the  State,  then  the  Constitution  says  to  him :  "  You 
shall  not  receive  any  other  salary  than  that  which  either  the  Legisla- 
ture, or  the  common  council,  or  the  board  of  estimate,  or  the 
board  of  supervisors  has  prescribed  as  your  compensation." 
Another  objection  that  has  been  made  to  this  amendment  is, 
that  the  Legislature,  or  the  common  council,  or  the  board  of 
supervisors  may  prescribe  extra  duties,  and  may  impose  upon 
an  official  who  has  accepted  the  obligation  of  his  office  some- 
thing extra  to  do.  That  was  the  objection  urged  by  my  friend, 
Mr.  Burr.  Now,  sir,  I  have  had  some  experience  in  that  respect. 
I  occupied  the  office  of  district  attorney  in  the  city  and  county 
of  New  York,  and  the  Legislature  of  this  State  said,  that  in  addi- 
tion to  the  duty  of  prosecuting  criminals,  I  should  undertake 
the  business  of  collecting  the  delinquent  obligations  of  those  who 
ought  to  pay  collateral  inheritance  taxes,  and  during  the  three  years 
that  I  was  in  office  I  had  to  perform  that  extra  and  unexpected 
duty.  I  did  not  ask,  nor  could  I,. for  any  increase  of  salary  on  that 
account ;  but  I  went  to  the  Legislature  and  asked  them  to  give  me 


758  REVISED  RECORD.  [Friday, 

an  extra  clerk  for  the  purpose  of  performing  the  merely  executive 
part  of  that  duty,  I,  of  course,  assuming  the  obligations.  When  a 
board  of  supervisors  of  a  town  undertakes  to  impose  additional 
duties,  it  is  to  be  expected  that  they  will  give  the  official  some  extra 
aid  and  provide  for  the  assistant  an  additional  salary.  There  is 
nothing  whatever  in  that  objection.  It  is  the  merest  bugbear  con- 
jured up  for  the  purpose  of  defeating  this  wholesome  amendment. 
Then  it  is  said  that  the  Constitution  of  1867  emasculated  the  article 
of  1846.  So  it  did.  The  Constitution  of  1846  said  that  the  Legis- 
lature shall  not,  nor  shall  the  common  council  of  any  city,  nor  any 
board  of  supervisors,  grant  any  extra  compensation,  to  any  public 
officer,  servant,  agent  or  contractor.  And  this  is  what  the  Constitu- 
tion of  1 867 said:  "The  Legislature  shall  not  grant  any  extra  com- 
pensation to  any  public  officer,  servant,  agent  or  contractor,  nor 
increase  or  diminish  any  compensation,  except  that  of  judicial 
officers,  during  the  term  of  service."  They  not  only  emasculated 
the  provisions  of  the  article  of  1846,  but  they  included  an  excep- 
tion in  the  way  of  judicial  officers,  and,  I  believe,  that  was  one 
of  the  causes,  distributed  through  the  localities  of  the  State, 
which  helped  to  defeat  the  Constitution  of  1867.  What  reason 
was  there,  as  we  look  at  it  nowadays,  for  that  exception?  None 
whatever.  Suppose  any  man  should  rise  on  this  floor  and  pro- 
pose to  insert  that  exception  now;  how  would  he  be  received? 
Would  not  the  common  sense  of  this  day  and  generation  resent 
such  a  proposition?  The  people  resented  it  in  1867.  Some- 
thing has  been  said  in  regard  to  firemen  and  policemen  in 
the  city  of  New  York  and  in  other  cities.  Mr.  Marshall  says 
that  firemen  and  policemen  are  not  included  within  the  provisions 
of  my  amendment.  I  do  not  care  whether  they  are  included  or  not. 
It  is  all  nonsense  to  talk  about  it.  I  tell  you  that  during  the  last 
ten  years  of  my  life  I  have  been  importuned  at  least  once  a  week 
to  advocate  the  appointment  of  some  man  on  the  police  force,  or  in 
the  fire  department  of  the  city  of  New  York,  and  I  assure  you  that 
there  are  a  hundred  applications  for  every  vacancy  in  those  depart- 
ments, and  it  requires  the  greatest  effort  and  the  largest  amount  of 
influence  to  secure  such  an  appointment,  and  all  the  influence  which 
I  have  been  able  to  exert  has  only  resulted  in  the  appointment  of  a 
comparatively  few  men  on  the  police  force  or  in  the  fire  department 
in  New  York  city. 

Mr.  Burr  —  Will  the  gentleman  permit  a  question? 

Mr.  Nicoll  —  Yes,  sir. 

Mr.  Burr  —  Has  the  gentleman  read  from  the  Constitution  of 
1867  all  that  part  pertaining  to  this  matter? 


August  17.]  CONSTITUTIONAL  CONVENTION.  759 

Mr.  Nicoll  —  I  hope  so. 

Mr.  Burr  —  Have  you  read  section  8  of  article  7,  which  says  that 
the  restrictions  on  the  power  of  the  Legislature  contained  in  section 
17,  article  3  of  the  Constitution  shall  apply  to  common  councils  of 
cities  and  to  board  of  supervisors  of  counties? 

Mr.  Nicoll  —  Yes,  sir. 

Mr.  Burr  —  Then,  sir,  that  could  have  played  no  part  in  defeating 
the  Constitution  of  1867. 

Mr.  Nicoll  —  Mr.  Chairman,  I  am  not  afraid  of  gentlemen  with 
political  aspirations  in  the  city  of  New  York  or  gentlemen  who  are 
interested  in  the  matter  of  increasing  or  diminishing  the  compensa- 
tion of  officials  in  New  York. 

Mr.  Mulqueen  —  Mr.  Chairman,  I  rise  to  a  point  of  order. 

The  Chairman  —  The  gentleman  will  state  his  point  of  order. 

Mr.  Mulqueen  —  My  point  of  order  is,  that  the  gentleman  has  no 
right  to  glorify  himself  at  the  expense  of  another  member  of  this 
Convention,  and  say  that  the  member  takes  a  position  because  he 
has  political  aspirations. 

The  Chairman  —  The  Chair  decides  that  the  point  of  order  is  not 
well  taken,  and  Mr.  Nicoll  will  proceed. 

Mr.  Nicoll  —  I  want  to  say  to  the  gentlemen  present  that  the 
mayor  of  the  city  of  New  York  has  told  me,  time  and  again,  while 
I  have  been  associated  with  him  in  discharging  the  duties  of  gov- 
ernment in  that  city,  that  there  was  no  more  serious  evil  in  the  city 
of  New  York  than  the  importunity  by  men  holding  office  applying 
to  the  constituted  authorities  from  time  to  time  for  an  increase  of 
their  compensation.  I  have  been  by  the  side  of  the  present  mayor 
when,  time  after  time,  he  has  denied  such  improper  applications  of 
officials  for  an  increase  of  the  salary  which  the  board  of  estimate 
and  apportionment  had  provided  for  them. 

Mr.  Mulqueen  —  I  would  ask  the  gentleman  whether  what  the 
mayor  complained  of  was  not  the  interference  by  the  Legislature 
in  the  matter  of  salaries? 

Mr.  Nicoll  —  No,  sir. 

Mr.  Mulqueen  —  Did  the  gentleman  ever  hear  the  mayor  of  the 
city  of  New  York  say  that  the  authorities  of  the  city  had  unfairly 
granted  an  increase  of  salary?  Was  not  his  protest  directed  against 
the  Legislature's  interfering  against  the  direct  protest  of  the  munici- 
pal authorities? 

Mr.  Nicoll  —  That  is  not  all,  sir.  The  mayor  has  time  after  time, 
in  my  presence,  denied  the  applications  of  officials  whose  salaries 


760  REVISED  RECORD.  [Friday, 

were  fixed  by  the  board  of  estimate  and  apportionment  for  an 
increase.  What  I  mean  to  say  is  this:  Whatever  other  gentlemen 
in  this  Convention  have  experienced,  my  long  personal  and  political 
association  with  the  present  mayor  of  the  city  of  New  York  has 
inculcated  in  me  an  admiration  for  his  power  of  resistance  against 
the  hungry  horde  of  office  holders  who  come  up  every  season,  for 
political  reasons,  to  demand  an  increase  in  salary.  He  is  entitled  to 
the  respect  of  this  Convention  and  of  the  community  of  the  city  of 
New  York,  I  say,  for  his  powers  of  resistance  in  this  regard.  Xow, 
sir,  one  of  the  reasons  why  I  advocate  this  amendment  is  because 
there  may  come  a  time,  in  the  near  future,  when  a  less  resolute 
executive  may  hold  the  power  of  increasing  salaries  in  the  city  of 
New  York.  This  is  a  proposition  which  appeals  to  the  personal 
experience  of  every  delegate  in  this  Convention.  There  are  men 
here,  I  am  aware,  who  have  had,  fortunately  for  themselves,  com- 
paratively little  experience  with  these  public  affairs.  It  is  certainly 
no  discredit  to  any  member  of  this  Convention  that  he  has  not  held 
an  active  public  office  in  a  great  municipality.  It  is  a  misfortune, 
probably,  for  any  man  in  this  Convention  if  he  has  had  that  experi- 
ence. But,  speaking  from  the  depths  of  a  long  experience  and  an 
extended  observation,  and  a  personal  acquaintance  with  a  variety 
of  schemes,  I  beg  to  assure  you  that  there  is  no  one  evil  now  exist- 
ing more  serious  or  more  dangerous  than  that  involved  in  the 
proposition  which  we  are  now  considering.  Nor  do  I  discuss  it 
purely  from  a  municipal  standpoint,  for  long  before  I  came  to  the 
city  of  New  York  I  was  an  active  participant  in  the  government  of 
one  of  the  counties  of  this  State,  and  in  one  of  its  villages.  I  lived 
in  the  county  of  Queens,  Long  Island,  and  in  the  village  of  Flush- 
ing, and  Mr.  Storm  will  agree  with  me  — 

Mr.  Storm  —  We  hope  to  get  you  back  again. 

'  Mr.  Nicoll  —  Mr.  Storm,  who  was  my  associate  there,  will  agree 
with  me  that  the  same  evil  exists  in  the  villages  of  this  State,  and 
it  is  quite  as  salutary  for  us,  who  used  to  live  in  the  villages,  to 
insist  upon  this  amendment,  as  it  is  for  us  who  now  live  in  the 
larger  communities  of  the  State.  There  is  no  possible  objection  to 
be  urged  against  this  amendment.  So  far  as  the  supervisors  are 
concerned,  or  the  common  council  of  cities,  or  the  board  of  trus- 
tees of  villages,  they  have  all  the  power  that  they  ever  had.  They 
can  appoint  their  officers,  prescribe  their  duties,  limit  their  powers 
and  fix  their  compensation.  Nothing  is  taken  away  from  them. 
The  only  mandate  that  ought  to  go  forth  from  this  Convention  is, 
that  when  a  man  under  those  circumstances  has  accepted  an  office 
he  shall  not  be  allowed  to  receive  anything  except  that  which  the 


August  17.]  CONSTITUTIONAL  CONVENTION.  761 

law  that  he  studies  before  he  accepts  the  nomination  and  election 
provides,  and  that  it  shall  not  be  changed  for  his  benefit  during  his 
incumbency  of  the  office. 

Mr.  Countryman  —  Mr.  Chairman,  I  desire  to  emphasize  the 
remarks  of  the  last  speaker  upon  this  subject.  This  amendment  is 
not  involved  to  any  extent  with  the  question  of  home  rule  in  the 
various  cities  and  villages  of  the  State.  Now,  what  is  home  rule? 
As  I  understand  it,  it  is  the  right  of  the  people  of  the  State  to  regu- 
late their  own  affairs,  subject  to  the  restraints  of  the  Constitution, 
and  with  reference  to  the  various  subdivisions  or  municipalities  and 
other  civil  divisions  of  the  State;  it  is  their  right  to  regulate  their 
domestic  affairs,  subject  to  the  laws  which  have  conferred  those 
powers  and  privileges  upon  them,  the  statutory  laws  of  the  State. 
Now,  it  is  absurd,  to  my  mind,  to  say  that  it  is  perfectly  proper  to 
impose  restraints  in  the  Constitution  upon  the  Legislature,  but 
improper  to  impose  those  same  restraints  upon  the  civil  divisions  of 
the  State,  the  villages  and  the  cities,  the  towns  and  the  counties. 
All  of  the  rights  which  these  various  civil  divisions  hold  and  have 
with  respect  to  legislation  or  local  affairs,  and  the  right  to  regulate 
their  own  domestic  concerns,  are  given  them  by  the  Legislature  of 
the  State.  If  some  of  the  amendments  proposed  to  be  incorporated 
in  the  Constitution  by  this  Convention  are  adopted,  they  will  be 
conferred  by  the  fundamental  law,  instead  of  by  the  Legislature. 
But  certainly  the  people  as  a  whole,  represented  in  this  body  as  a 
sovereign,  the  deputies  of  the  sovereign  will,  have  a  right  to  impose 
such  limitations  and  such  restraints  upon  the  Legislature,  or  boards 
of  supervisors,  or  municipal  common  councils,  or  village  boards  of 
trustees,  as  under  all  circumstances  we  deem  proper,  and  are  justi- 
fied by  the  interests  of  the  people  at  large,  and  that  is  all  that  is 
proposed  to  be  done  here. 

Now.  I  have  listened  with  close  attention  to  this  discussion.  It 
has  been  going  on  the  entire  day,  and  I  have  been  surprised  at 
some  of  the  criticisms  that  haye  been  made  by  some  of  the  gentle- 
men from  different  portions  of  the  State  of  those  proposed  amend- 
ments. I  found,  upon  looking  at  the  existing  Constitution  (the  sec- 
tion proposed  by  this  amendment  to  be  changed  was  read  in  your 
presence  here  to-night  by  Mr.  Marshall),  that  those  criticisms,  if 
they  are  entitled  to  any  weight,  were  made  and  were  pointed  at  the 
existing  constitutional  provision  and  not  at  the  provisions  contained 
in  the  proposed  amendment.  All  that  we  have  heard  to-day 
from  several  gentlemen  touching  the  right  to  interfere  with  or  to 
grant  extra  compensation  to  public  officers,  servants,  agents  or  con- 
tractors, is  embodied  in  the  present  Constitution,  and  is  not 


762  REVISED  RECORD.  [Friday, 

affected  by  the  proposed  amendment  which  is  now  the  subject  of  dis- 
cussion here.  So  far  as  the  general  public  officers  are  concerned,  and 
so  far  as  local  officers  are  concerned,  this  amendment  only  proposes 
to  add  and  to  include  salaries  as  well  as  compensation.  That  was 
undoubtedly  the  intention  of  the  framers  of  the  present  Constitu- 
tion, as  appears  by  the  debates  of  the  Convention  which  formulated 
the  existing  provision.  But  the  courts,  by  the  stringent  application 
of  an  artificial  rule  of  statutory  construction,  limited  that  provision 
to  compensation  strictly,  so-called,  and  excluded  the  salaries  of 
public  officers.  We  now  propose  to  supply  that  defect  by  including 
in  terms  what  was  supposed  to  be  included  in  the  original  provision 
(and  certainly  it  comes  within  the  principle  of  the  restriction  which 
is  included  in  the  Constitution),  and,  unless  this  proposed  amend- 
ment is  adopted,  the  existing  provision  should  be  repealed,  for  there 
is  no  reason  in  prohibiting  extra  compensation  and  allowing  an 
unlimited  increase  in  public  officers,  local  and  general,  throughout 
the  State. 

Now,  sir,  as  my  name  indicates,  I  was  born  and  bred,  and  lived 
the  most  of  my  life  in  the  country,  and  if  I  should  be  favored 
with  a  limited  extension  of  life,  I  propose  to  live  again  and  to  die 
there.  I  am  quite  as  familiar  with  the  proceedings  in  the  villages 
of  the  State  (particularly  in  the  central  portion  of  the  State),  with 
the  proceedings  of  boards  of  supervisors,  as  I  am  with  that  of 
the  larger  municipality,  this  capital  city  in  which  we  are  now 
assembled,  and  I  assert,  in  view  of  my  experience  there,  that 
the  same  evils  exist  (on  a  lesser  scale,  of  course)  in  all  of  these  local 
boards  that  we  all  recognize  in  the  larger  municipalities  and  in  the 
legislative  hall,  and  the  same  reason,  that  has  prompted  the  adoption 
of  this  restraint  upon  the  exercise  of  legislative  will,  applies  in  full 
force  to  those  local  bodies.  Is  there  any  reason,  sir,  why  we  should 
adopt  provisions  of  this  character  restraining  the  action  of  the 
Legislature,  and  not  extend  these  restraints  to  these  lesser  munici- 
pal bodies  that  are  created  by  the  Legislature?  The  one  necessarily 
involves  the  other,  and  when  we  have  adopted  the  provision  as  to 
one,  we  have  adopted  a  principle  which  should  be  extended  as  far 
legislative  hall,  and  the  same  reason,  that  has  prompted  the  adoption 
as  the  evil  exists.  I  submit,  Mr.  Chairman,  that  the  amendment  is 
right  in  principle  and  should  be  extended,  without  any  further  dis- 
cussion on  the  subject. 

Mr.  Barhite  —  Mr.  Chairman,  I  am  in  favor  of  this  amendment, 
but  it  seems  to  me  that  there  has  arisen  in  the  minds  of  some  of  the 
members  of  this  committee  a  doubt  as  to  just  how  far  this  amend- 
ment extends,  and  as  to  just  what  classes  of  officers  it  may  apply.  I 


August  17.]  CONSTITUTIONAL  CONVENTION.  763 

do  not  believe  that  any  member  of  this  committee  desires  to  vote 
upon  a  question  that  he  does  not  thoroughly  understand;  and,  while 
I  am  as  anxious  as  anyone  to  finish  the  business  of  the  Convention 
and  not  delay  matters,  yet,  I  think,  it  would  be  the  part  of  wisdom 
to  take  more  time  to  consider  this  amendment.  I  therefore  move 
that  this  committee  do  now  rise  and  report  progress,  and  ask  leave 
to  sit  again. 

Mr.  Maybee  —  Mr.  Chairman,  I  rise  to  a  point  of  order.  I  do 
not  know  whether  I  am  correct  or  not,  as  I  do  not  claim  to  be  much 
of  a  parliamentarian,  but  there  is  a  motion  now  pending  to  report 
this  amendment  favorably  to  the  Convention,  and  recommend  its 
passage.  I  desire  to  inquire  whether,  the  motion  being  before  the 
Convention,  this  motion  is  now  in  order? 

The  Chairman  —  The  Chair  holds  that  a  motion  to  rise  and  report 
progress  is  always  in  order. 

The  Chair  put  the  question  on  the  motion  of  Mr.  Barhite,  that 
the  committee  rise  and  report  progress,  and  ask  leave  to  sit  again, 
and  it  was  lost 

Mr.  H.  A.  Clark  —  Mr.  Chairman,  previous  to  the  sitting  of  this 
Convention,  the  New  York  "  World  "  sent  out  to  each  delegate 
elected  to  this  body  a  printed  letter  in  which  it  asked  several  ques- 
tions, among  which  was  one  as  to  whether  the  Convention  would 
make  a  new  Constitution,  or  propose  amendments  to  the  old  one. 
Another  question  was,  how  long  the  Convention  would  sit.  One 
member  of  the  Convention  —  and  I  do  not  recollect  who  it  was  — 
in  his  answer,  which  was  printed  in  the  "  World,"  said  that  after 
proposing  certain  amendments,  he  thought  the  rest  of  the  Constitu- 
tion would  not  need  amendment,  but  it  would  need  thorough  dis- 
cussion. Now,  Mr.  Chairman,  unless  we  are  careful,  the  Constitu- 
tion will  get  the  thorough  discussion  and  no  amendments.  It 
seems  to  me  that  this  question  should  be  determined  and  decided 
to-night,  and,  while  I  do  not  wish  to  go  into  a  discussion  of  the 
merits,  I  do  say  that  I  am  in  favor  of  the  amendment.  Certain 
delegates  have  spoken  here  in  opposition  to  the  amendment,  and 
have  stated  as  their  only  reason  that  it  interferes  with  home  rule  in 
cities.  I  am  a  member  of  the  Committee  on  Cities,  and  I  wish  to 
say  to  those  members  who  oppose  this  amendment  on  that  account, 
that  in  my  opinion  the  term  "  home  rule  in  cities  "  is  a  sham  and 
a  delusion,  and  if  they  insist  on  the  amendments  to  the  proposition 
of  the  Cities  Committee  as  to  home  rule,  they  will  get  from  this 
Convention,  in  my  opinion,  no  bill  for  home  rule  in  cities,  and. 


764  REVISED  RECORD.  [Friday, 

therefore,  they  do  not  need  to  oppose  this  amendment  on  that 
account. 

The  Chairman  —  The  question  before  the  committee  is  on  the 
motion  of  Mr.  Acker,  that  the  committee  do  now  rise  and  report 
this  amendment  to  the  Convention,  and  recommend  its  passage. 

The  Chair  put  the  question  on  this  motion,  and  it  was  determined 
in  the  affirmative  by  a  vote  of  fifty-four  ayes  to  fifty-two  noes. 

The  President  resumed  the  chair. 

Mr.  Cookinham  —  Mr.  President,  the  Committee  of  the  Whole 
has  had  under  consideration  proposed  amendment  No.  378,  to 
amend  section  3  of  the  Constitution,  relative  to  public  officers,  and 
have  gone  through  with  the  same,  and  made  some  amendments 
thereto,  and  have  instructed  their  chairman  to  recommend  its 
passage. 

The  President  —  The  question  is  upon  agreeing  with  the  report 
of  the  committee. 

Mr.  Lincoln  —  Mr.  President,  I  call  for  the  ayes  and  noes. 

The  President  put  the  question,  and  the  call  for  the  ayes  and  noes 
was  sustained. 

The  President  —  Delegates,  as  their  names  are  called,  who  are 
in  favor  of  agreeing  to  the  report  of  the  committee,  favorable  to  this 
amendment,  will  say  aye,  and  those  opposed,  no.  By  rule  6,  every 
gentleman  is  obliged  to  respond  to  the  call  and  vote  upon  this 
question. 

Mr.  Blake  —  Mr.  President,  I  beg  to  be  excused  from  voting,  and 
will  briefly  state  my  reasons.  There  has  been  some  discussion  as 
to  whether  this  amendment  conflicts  with  the  principle  of  home 
rule  or  not.  It  seems  to  me  that  it  violates  the  very  essence  of 
home  rule,  and  it  aims  a  blow  at  the  very  heart  of  home  rule.  There 
have  been  several  definitions  of  home  rule,  and  I  desire  to 
give  my  definition  of  it,  which  is  this:  Let  the  people  of 
each  locality  manage  their  own  affairs  without  interference 
from  outside  quarters,  or,  at  least,  let  there  be  a  mini- 
mum of  interference.  Yet  the  State  invades  the  domain  of 
home  rule  and  undertakes  to  say  to  villages,  towns  and  cities, 
how  much  salary  they  shall  pay  their  officials,  servants  and  agents. 
In  the  city  of  New  York,  if  the  authorities  see  fit  to  increase  the 
salaries  of  any  of  their  officials,  why  should  they  not  be  allowed  to 
do  so?  It  seems  to  me  that  gentlemen  have  misconceived  this 
question  entirely.  Mr.  Marshall  stated  in  his  very  interesting 
remarks  that  it  was  a  question  of  phraseology.  Why  have  we 


August  17.]  CONSTITUTIONAL  CONVENTION.  765 

wasted  half  a  day  here  in  the  question  of  phraseology,  and  not  in 
the  consideration  of  a  question  of  principle?  It  seems  to  me  that 
we  had  better  be  doing  some  more  important  business.  For  these 
reasons,  Mr.  President,  I  withdraw  my  request  to  be  excused  from 
voting,  and  vote  no. 

Mr.  Powell  —  Mr.  President,  I  asked  to  be  excused  from  voting, 
and  will  occupy  a  moment  in  stating  my  reasons.  I  have  not 
participated  in  the  debate  on  this  subject,  although  I  have  watched 
it  with  great  interest.  At  first  I  was  inclined  to  vote  in  opposition 
to  the  amendment,  and  afterwards  saw  reasons  to  change  my  views. 
Then  my  mind  again  became  disturbed  as  to  whether  or  not  this 
might  affect  the  status  of  policemen  and  firemen.  I  can  very  read- 
ily conceive  of  circumstances  where  it  might  be  just  and  proper 
that  their  salaries  should  be  raised  during  their  terms  of  office.  But 
after  a  careful  examination  of  the  Constitution  as  it  now  is,  and  of 
this  proposed  amendment,  and  after  consultation  with  gentlemen  on 
the  floor  of  this  Convention,  in  whose  legal  judgment  I  have  great 
confidence,  I  have  come  to  the  conclusion  that  it  would  be  impossi- 
ble to  apply  this  amendment  to  that  class  of  public  servants,  believ- 
ing that  they  are  public  servants  and  not  public  officers.  My  mind 
having  been  set  at  rest  on  that  score,  that  the  status  of  policemen 
and  firemen  will  not  be  affected,  I  am  of  the  opinion  that  the  pro- 
posed amendment  is  a  step  on  the  highway  toward  reform,  that 
it  will  remedy  great  abuses  which  have  existed  in  the  past,  and 
which  are  liable  to  increase  in  the  future.  I,  therefore,  withdraw 
my  request  to  be  excused  from  voting,  and  vote  aye. 

Mr.  Putnam  —  Mr.  President,  I  move  that  the  names  of  absentees 
be  called. 

The  President  —  The  rule  requires  every  gentleman  in  the  House 
to  vote,  unless  excused.  The  Secretary  will  call  the  names  of 
absentees. 

Mr.  T.  A.  Sullivan  —  Mr.  President,  I  ask  to  be  excused  from 
voting  for  the  reason  that  I  do  not  understand  the  scope  of  the  pro- 
posed amendment,  and  I,  therefore,  cannot  conscientiously  vote 
either  for  or  against  it. 

The  President  put  the  question  on  the  request  of  Mr.  Sullivan 
that  he  be  excused  from  voting  for  the  reason  stated,  and  the 
request  was  granted. 

The  President  —  Mr.  T.  A.  Sullivan  is  excused  from  voting  by 
the  grace  of  the  Convention. 

Mr.  Tekulsky — Mr.  President,  I  would  like  to  know  how  Mr. 
Speer  is  recorded  on  this  vote? 


766  REVISED  RECORD.  [Friday, 

Mr.  Speer  —  I  vote  no. 

Mr.  Cochran  —  I  would  like  to  know  how  Mr.  Woodward  is 
recorded? 

Mr.  Woodward  —  I  vote  no. 

Mr.  Deterling — Mr.  President,  I  desire  to  change  my  vote  from 
"  aye  "  to  "  no." 

The  report  of  the  committee  was  disagreed  to  by  the  following 
vote: 

Ayes  —  Messrs.  Abbott,  Acker,  Ackerly,  Baker,  Barhite,  Barrow, 
Brown,  Cassidy,  Clark,  G.  W.,  Clark,  H.  A.,  Countryman,  Davis, 
Dickey,  Emmet,  Floyd,  Francis,  Fuller,  C.  A.,  Galinger,  Hamlin, 
Hecker,  Hedges,  Hill,  Jacobs,  Johnson,  J.,  Kerwin,  Kinkel,  Lewis, 
C.  H.,  Lyon,  Mantanye,  Maybee,  McDonough,  Mclntyre,  Mere- 
ness,  Morton,  Nicoll,  Nostrand,  O'Brien,  Parker,  Pashley,  Phipps, 
Powell,  Pratt,  Redman,  Rogers,  Schumaker,  Steele,  W.  H.,  Storm, 
Sullivan,  W.,  Tucker,  Turner,  Vedder,  Veeder,  Vogt,  Wellington, 
Whitmyer  —  55. 

Noes  —  Messrs.  Alvord,  Barnum,  Blake,  Burr,  Cady,  Campbell, 
Chipp,  Jr.,  Church,  Cochran,  Cookinham,  Crosby,  Davenport, 
Davies,  Dean,  Deterling,  Doty,  Durfee,  Frank,  Augustus,  Fraser, 
Fuller,  O.  A.,  Giegerich,  Gilleran,  Goeller,  Green,  J.  I.,  Hawley, 
Hirschberg,  Holcomb,  Holls,  Lincoln,  Manley,  Marks,  Marshall, 
McArthur,  McCurdy,  McKinstry,  McLaughlin,  C.  B.,  McLaugh- 
lin,  J.  W.,  McMillan,  Meyenborg,  Moore,  Mulqueen,  Nichols, 
Osborn,  Parkhurst,  Peabody,  Peck,  Platzek,  Putnam,  Root,  Sand- 
ford,  Smith,  Speer,  Steele,  A.  B.,  Tekulsky,  Titus,  Williams,  Wood- 
ward, President  —  58. 

The  President  —  The  report  is  disagreed  to,  and  the  amendment 
defeated,  by  a  vote  of  fifty-five  ayes  to  fifty-eight  noes. 

Mr.  G.  W.  Clark  —  Mr.  President,  I  ask  to  be  excused  for 
to-morrow,  owing  to  pressing  business  at  home. 

The  President  put  the  question  on  the  request  of  Mr.  Clark,  and 
it  was  granted. 

Mr.  Nostrand  —  Mr.  President,  I  ask  to  be  excused  for 
to-morrow. 

The  President  put  the  question  on  the  request  of  Mr.  Nostrand, 
and  it  was  granted. 

Mr.  Kinkel  —  Mr.  President,  I  desire  to  be  excused  from  attend- 
ance on  Monday. 


August  17.]  CONSTITUTIONAL  CONVENTION.  767 

The  President  put  the  question  on  the  request  of  Mr.  Kinkel,  and 
the  request  was  granted. 

Mr.  J.  I.  Green  —  Mr.  President,  I  rise  for  information.  I  would 
like  to  know  how  many  members  are  excused  from  attendance 
to-morrow  and  also  on  Monday? 

The  President  —  Forty-four  have  been  excused  from  attendance 
to-morrow,  and  thirty-five  for  Monday.  The  Convention  will  now 
proceed  with  the  call  of  general  orders. 

The  Secretary  called  general  order  No.  8,  introduced  by  Mr. 
Lauterbach. 

General  order  No.  8  was  not  moved. 

The  Secretary  called  general  order  No.  19  (printed  No.  386), 
introduced  by  Mr.  Roche,  to  amend  section  18  of  article  3  of  the 
Constitution,  relating  to  special  or  local  laws. 

General  order  No.  19  was  not  moved. 

The  Secretary  called  general  order  No.  20  (printed  No.  308), 
introduced  by  Mr.  McKinstry,  to  amend  article  3,  in  regard  to  tak- 
ing saloons  out  of  politics. 

Mr.  McKinstry  —  Mr.  President,  it  is  so  late  that  I  dislike  to 
move  that,  although  I  am  ready,  and  I  would  like  to  have  it  made 
a  special  order  for  to-morrow  morning. 

Mr.  Tekulsky  —  Oh,  no;  let  us  dispose  of  it  now. 
Mr.  McKinstry  —  Very  well ;  I  will  move  it  now. 
The  President  —  Mr.  Hawley  will  take  the  chair. 
The  Convention  then  went  into  Committee  of  the  Whole  on 
general  order  No.  20,  Mr.  Hawley  in  the  chair. 

The  Chairman  —  The  Convention  is  in  Committee  of  the  Whole 
on  general  order  No.  20. 

Mr.  McKinstry  —  Mr.  Chairman,  for  the  purpose  of  debate  I 
will  move  to  strike  out  the  enacting  clause.  The  committee  has 
changed  this  amendment  somewhat  from  the  form  in  which  I  drew 
it  by  inserting  a  proposed  uniform  tax,  but  I  do  not  know  that  I 
object  to  it  particularly  on  that  ground.  I  can  explain  the  amend- 
ment to  the  Convention  in  a  few  minutes.  The  objects  of  this 
proposed  constitutional  amendment  are  three-fold:  First,  to  do 
away  with  the  disgraceful  condition  of  the  State  recognizing  a  busi- 
ness as  an  evil,  and  then  allowing  it  to  continue  by  payment  of  a 
certain  fee,  expressly  providing  that  the  consent  is  given  in  con- 
sideration of  that  fee.  The  second  object  is,  a  measure  of  justice 
to  the  liquor  dealers.  If  their  businss  is  right  and  proper,  why 


768  REVISED  RECORD.  [Friday, 

should  it  not  be  treated  like  the  business  of  other  citizens?  When 
a  community  votes  that  it  is  desirable  to  have  liquor  sold  in  its 
midst,  wherein  is  the  consistency  of  saying  that  one  man  may  sell, 
and  another  may  not,  and  leave  to  some  political  board  the  decision 
as  to  who  may  sell  and  who  may  not?  A  special  tax  is  not  a  license, 
nor  a  condemnation  of  the  business.  There  are  already  special 
taxes  in  this  State;  for  instance,  the  tax  upon  the  organization  of 
corporations,  the  tax  upon  their  profits,  the  tax  upon  inheritances, 
collateral  and  direct.  All  these  special  taxes  are  imposed  with  a 
view  to  aiding  the  general  taxpayers  of  the  State,  but  never  on  the 
ground  of  permitting  an  evil.  The  third  object  is  to  do  away  with 
one  of  the  greatest  sources  of  corruption  in  our  politics,  a  corrup- 
tion that  must,  by  the  very  constitution  of  human  nature,  become 
more  and  more  dangerous  and  oppressive.  Pause  and  consider  the 
enormous  power  of  excise  boards  in  this  State.  There  is  no  other 
body  in  all  the  State  endowed  with  such  stupendous,  arbitrary 
power,  limited  solely  by  their  own  discretion  or  caprice.  There 
was  a  law  allowing  appeals  from  their  decisions  to  the  Supreme 
Court,  but  that  court  by  no  less  than  half  a  dozen  decisions,  on 
appeals  brought  in  different  parts  of  the  State,  decided  only  last 
year  that  the  duty  of  reviewing  the  action  of  excise  boards,  in 
matters  left  to  the  discretion  of  such  boards,  could  not  be  imposed 
upon  judges,  according  to  the  Constitution,  and  the  decisions  of 
those  judges  being  uniform  in  conclusion  and  unanimous  through- 
out the  State,  there  is  no  question  but  that  they  are  correct.  Hence 
the  excise  board  of  every  town  and  city  remains  absolutely  supreme 
and  final  in  its  power,  having  in  its  control  franchises  which  in  the 
larger  cities  may  be  worth  millions  of  dollars  in  the  aggregate,  and 
the  men  who  seek  the  favors  of  such  boards  must  be  prepared  to 
submit  to  any  exactions  the  board  may  desire  to  impose.  I  claim 
that  it  is  un-American  to  give  any  body  of  men  such  power  over 
the  means  of  livelihood  of  a  large  number  of  citizens. 

"All  that  a  man  hath  will  he  give  for  his  life,"  and  the  name  is  true 
of  his  means  of  life.  I  claim  that  human  nature  should  never  be 
put  to  the  test  of  exercising  such  power  under  a  government  alleged 
to  have  regard  for  the  rights  of  the  individual.  The  revelations  of 
investigations  in  our  large  cities,  the  struggles  of  political  parties 
and  factions  to  get  control  of  excise  boards,  and  the  efforts  of  indi- 
viduals to  be  elected  to  the  office  of  excise  commissioner  all  point 
to  one  fact,  that  human  nature  is  not  equal  to  such  a  test  of  unre- 
strained power.  To  put  it  plainly,  the  man  who  has  the  "  pull " 
gets  the  license,  and  he  can  only  keep  it  by  surrendering  his  political 
rights  and  submitting  to  whatever  political  and  personal  exactions 


August  17.]  CONSTITUTIONAL  CONVENTION.  769 

the  party  in  power  may  demand.  No  party,  either  Republican  or 
Democratic,  should  ever  be  vested  with  such  power.  The  next 
step  from  political  exactions  is  personal  exactions,  and  I  am  told 
that  even  in  small  towns,  when  the  excise  commissioner  comes  into 
a  place  which  does  business  by  his  permission,  the  cigar  case  is 
open  to  him,  and  whatever  he  chooses  to  order  is  "  hung  up,"  to 
be  paid  for  at  his  august  convenience.  The  whole  of  code  license 
is  intrinsically  wrong.  I  have  heard  this  argument  from  hundreds 
of  pulpits,  and  I  have  never  heard  it  answered.  If  liquor  selling 
is  morally  wrong,  no  payment  of  a  license  or  indulgence  fee  can 
make  it  right.  If  it  is  right,  all  men  have  an  equal  right  to 
engage  in  it  upon  equal  conditions.  Thousands  of  conscientious, 
Christian  voters  have  joined  the  Prohibition  party  upon  this  state- 
ment of  the  case,  because  they  could  not  justify  the  license  system, 
or  uphold  any  party  that  favored  either  high  or  low  license.  Of 
the  two,  high  license  is  far  the  more  obnoxious  to  them.  On  the 
other  hand,  thousands  of  other  voters  have  been  controlled  in  the 
interest  of  political  parties  by  such  parties  having  the  control  of 
excise  boards  in  large  cities,  giving  them  power,  not  only  to  demand 
the  utmost  political  efforts  of  certain  dealers,  but  also  to  raise  vast 
sums  of  money  for  political  purposes.  This  condition  is  liable  to  be 
true  of  one  party  in  one  city  and  of  another  party  in  another  city, 
or  of  different  parties  in  the  same  city  at  different  times.  There- 
fore, I  do  not  propose  this  measure  as  a  partisan  scheme,  but  simply 
for  the  advancement  of  public  morality  and  purer  politics.  While 
the  tax  authorized  by  this  amendment  would,  no  doubt,  be  higher 
than  the  present  license  fees  in  most  places,  I  believe  most  liquor 
dealers  would  prefer  to  pay  it  and  be  relieved  of  all  other  assess- 
ments. It  is  simply  a  question  of  turning  their  present  contribu- 
tions to  political  committees  and  political  strikers  into  the  public 
treasury. 

Regulation  of  the  traffic  as  to  hours  of  sale,  general  conduct  of 
the  business,  also  its  location,  with  reference  to  school-houses  and 
churches  and  residence  blocks,  would  be  as  feasible  as  now.  The 
laws  would  be  general  and  bear  upon  all  alike. 

Mr.  Chairman,  I  should  not  have  the  assurance  to  propose  so 
radical  a  revolution  as  I  have  indicated,  upon  mere  theory.  It 
was  suggested  to  me  by  interviews  with  citizens  of  another  State. 
Those  citizens  of  Ohio,  strong  temperance  men,  have  praised  their 
system  to  me  in  earnest  terms,  and  yet  I  understand  that  the  liquor 
dealers  of  that  State  are  now  satisfied  with  it  for  the  reasons  I  have 
mentioned. 

49 


770  REVISED  RECORD.  [Friday, 

I  will  present  a  little  testimony  from  Ohio.  I  read  extracts  from 
correspondence  of  the  New  York  Evening  Post.  "  It  is  almost 
needless  to  say  that  this  measure  (the  Dow  law)  was  fought  in  the 
courts  with  great  bitterness.  The  saloon-keepers  of  the  State  were 
solidly  organized,  contributions  were  made  by  all  for  a  litigation 
fund,  and  every  phase  of  the  law  was  tested  in  the  Supreme  Court. 
That  body  had  a  Republican  majority,  however,  which  steadfastly 
upheld  the  view  championed  by  the  party  that  a  tax  law  was  not  a 
license  within  the  meaning  of  the  Constitution.  Within  a  year  and 
a  half  the  agitation  died  down,  and  then  the  Legislature  amended 
the  Dow  law  by  making  the  tax  uniform  and  fixing  the  amount  at 
$250  a  year.  It  also  changed  the  manner  of  distributing  the  tax  so 
that  two-tenths  of  it  now  go  to  the  general  revenue  fund  of  the 
State,  three-tenths  to  the  municipal  police  fund,  three-tenths  to  the 
general  fund  of  the  city,  and  the  remaining  two-tenths  to  the  poor 
fund  of  the  county.  The  aim  of  the  divisions  is,  as  far  as  possible, 
to  apply  this  tax  toward  paying  the  expenses  which  the  liquor 
business  entails  upon  the  community  and  commonwealth.  The 
public  generally  very  strongly  approve  the  plan,  and  no  law  now 
on  the  statute  books  has  a  firmer  hold  upon  public  favor  than  this 
tax  law.  No  general  assembly  would  dare  repeal  it." 

Besides  the  amendment  of  the  Dow  law,  the  General  Assembly, 
on  March  3,  1888,  enacted  a  local-option  measure  by  which  town- 
ships and  villages,  outside  of  any  municipal  corporation,  can  pro- 
hibit, by  popular  vote,  the  sale  of  liquor  within  their  limits. 
One-fourth  of  the  electors  must  petition  the  trustees  of  the  township 
or  council  of  the  village  for  the  privilege  of  a  ballot  on  the  local 
prohibition  of  the  traffic,  and  in  the  event  of  a  majority  of  the  electors 
voting  for  such  prohibition  proper  record  is  made  which  is  prima 
facie  evidence  that  the  sale  of  liquors  in  the  township  or  village  is 
unlawful.  A  ratable  proportion  of  the  Dow  tax  is  returned  to  a 
saloon-keeper  whose  place  is  closed  by  local  option.  The  penalties 
for  violating  local-option  ordinances  range  from  $50  to  $500  fine, 
and  imprisonment  in  the  county  jail  not  to  exceed  six  months.  The 
councils  of  the  smaller  cities  also  have  power  to  pass  a  local-option 
ordinance  and  close  all  saloons.  In  several  cities,  such  as  Alliance 
and  Painesville,  this  has  been  done,  though  the  results  have  not 
been  satisfactory  in  either  case  named.  Township  prohibition 
through  local  option  has  resulted  in  giving  the  State  several  hun- 
dred "  dry  "  townships,  and  has,  undoubtedly,  reduced  the  amount 
of  liquor  consumed  and  been  a  benefit  to  the  localities  in  question. 

The  constitutional  barrier  has  prevented  an  account  being  taken 
of  the  character  of  the  liquor  dealer.  Any  man  can  sell  liquor  in 


August  17.]  CONSTITUTIONAL  CONVENTION.  771 

Ohio  who  can  pay  the  tax,  or  can  induce  some  brewer  or  distiller 
to  make  him  his  agent  and  to  pay  the  tax  for  him.  Notwithstanding 
the  failure  of  the  law  to  require  good  character  in  the  dealer,  it 
cannot  be  doubted  that  the  general  result  of  the  tax  has  been  to 
improve  somewhat  the  character  of  the  men  in  the  business.  It 
has  not  closed  all  the  groggeries  of  the  slums,  but  it  has  driven  out 
a  few  of  them.  4  The  smaller  number  of  saloons  has  lessened  the 
temptation  to  drink,  and  proved  of  practical  value  from  a  strict 
temperance  standpoint.  This  is  the  general  opinion  of  the  public. 
It  goes  far  towards  proving  the  "  character  "  clause  of  license  laws 
in  other  States  of  no  great  value. 

One  great  advantage  of  the  Ohio  tax  system  over  the  license 
laws  of  other  States  is  that  all  excise  boards  are  abolished.  In 
the  forty  years  the  present  Constitution  has  been  in  operation,  Ohio 
has  not  known  what  a  licensing  board  was,  with  its  train  of  political 
effects.  All  the  tax  enactments,  the  Pond,  Scott  and  Dow  laws, 
contemplated  the  same  simple  but  effective  arrangement  of  putting 
the  fee  upon  the  basis  of  all  other  taxation.  Or,  rather,  it  is  freer 
from  all  suspicion  of  political  influence  than  the  other  subjects  from 
which  revenue  is  raised,  because  there  is  not  even  a  board  of  equali- 
zation to  be  influenced  or  a  change  of  valuation  to  be  striven  for. 
The  assessor  returns  the  number  of  saloons  and  their  proprietors, 
as  he  does  the  number  of  horses  or  any  other  item  of  taxation. 
The  auditor  is  under  heavy  bonds  to  report  these  to  the  treasurer 
in  the  same  manner  as  property,  and  the  liquor  dealer  has  no  appeal 
or  alternative  but  to  step  up  and  pay  the  fee  regularly  every  six 
months.  Any  man  who  can  pay  the  tax  can  sell  liquor,  but  there 
is  very  little  chance  for  liquor  dealers  to  escape  the  tax,  except, 
possibly,  a  few  drug  stores,  and  those  even  for  no  great  length  of 
time.  The  granting  of  licenses  cannot  possibly  be  the  source  of 
any  political  influence,  for  the  good  reason  that  the  receipt  for  the 
tax,  without  which  liquor  cannot  be  sold,  is,  in  the  usual  sense  of 
the  word,  not  a  license.  There  is,  accordingly,  nothing  in  the  law 
which  permits  a  groggery  to  be  closed,  providing  its  proprietor  has 
paid  the  tax.  But,  if  he  sells  to  minors,  to  intoxicated  persons,  or 
opens  on  Sunday,  he  can  be  heavily  fined,  and  for  the  latter  offense 
imprisoned  also." 

This  is  the  editorial  comment  of  the  "  Post "  of  June  3,  1893:  "  For 
some  time  past  we  have  been  impressed  by  the  conviction  that 
Ohio  was  having  less  trouble  with  the  liquor  problem  than  any 
other  large  State,  and  that  its  experience  must  be  worthy  of  more 
general  attention  from  the  country  than  it  has  hitherto  received. 
We  have,  therefore,  secured  from  an  intelligent  correspondent  in 


772  REVISED  RECORD.  [Friday, 

Cleveland  a  history  of  the  struggle  which  culminated  in  the  adoption 
of  the  existing  Dow  Tax  Law,  and  a  statement  of  its  operation. 
The  letter  in  question  is  published  on  another  page,  and  should  be 
read  by  everyone  who  is  interested  in  the  subject  of  liquor 
legislation. 

"  The  prohibition  wave  that  swept  over  the  country  a  generation 
ago  resulted,  among  other  things,  in  the  incorporation  in  the  Ohio 
Constitution,  in  1851,  of  a  provision  that  'no  license  to  traffic  in 
intoxicating  liquor,  shall  hereafter  be  granted  in  the  State.'  The 
consequence  of  this  was  '  free  rum  throughout  Ohio.'  A  dozen 
years  ago  it  was  estimated  that  there  were  more  than  16,000  places 
where  liquor  was  sold  in  a  State  which  forbade,  by  its  fundamental 
law,  any  license  to  such  traffic. 

"  Popular  sentiment  gradually  rose  in  protest  against  this  disgrace- 
ful state  of  things,  and,  in  1882,  an  attempt  was  made  to  put  some 
restriction  upon  the  traffic  by  a  tax,  as  a  license  fee  was  forbidden 
by  the  Constitution.  The  Supreme  Court,  however,  declared  the 
measure  unconstitutional,  on  the  ground  that  the  '  constitutionality 
of  a  statute  depe'nds  upon  its  operation  and  effect,  and  not  upon 
the  form  it  may  take,'  and,  as  the  tax  law  was,  in  effect,  a  license, 
it  contravened  the  Constitution  and  was  invalid.  A  second  law 
of  the  same  nature  was  also  annulled  by  the  courts.  But  public 
sentiment  steadily  crystallized  in  favor  of  the  tax  system,  and  in 
1886  a  measure,  known  as  the  '  Dow  Law '  was  passed,  which  the 
Supreme  Court  allowed  to  stand,  the  judges  arguing  this  time  that 
a  tax  was  not  a  license  within  the  meaning  of  the  Constitution.  The 
law  now  seems  to  be  firmly  entrenched  upon  the  statute  book  and 
nothing  short  of  a  revolution  in  popular  sentiment  will  lead  a 
Legislature  to  repeal  it  or  a  court  to  declare  it  unconstitutional. 

"  The  law  imposed  a  tax  of  $250  a  year  upon  every  saloon-keeper, 
and  any  man  can  sell  liquor  who  can  pay  the  tax,  or  who  can  induce 
some  brewer  or  distiller  to  make  him  his  agent  and  pay  the  tax  for 
him,  which  is  a  very  common  practice.  The  number  of  saloons 
paying  the  tax  is  now  about  n,ooo  —  a  much  smaller  number  than 
the  common  estimate  of  unlicensed  saloons  in  the  free-rum  era  — 
and  the  total  revenue  last  year  was  $2,683,939.  The  amount  of 
tax,  which  was  at  first  $100  for  wine  and  beer  saloons,  and  $200 
for  places  where  '  hard  drinks '  were  sold,  was  increased,  in  1888, 
to  a  uniform  figure  of  $250.  One  immense  advantage  of  a  tax  law 
over  the  license  system  is  the  elimination  of  political  influence  and 
pecuniary  corruption." 

You  probably  noticed,  Mr.  Chairman,  that  the  income  derived 
from  the  operation  of  the  Dow  law  in  Ohio  was  nearly  $3,000,000  in 


August  17.]  CONSTITUTIONAL  CONVENTION.  773 

one  year,  and  it  may  be  quite  that  sum  now  —  one-fifth  going  to 
the  State  treasury,  the  rest  to  the  uses  of  the  locality  where  it  was 
paid.  In  this  State  the  same  tax  rate  on  liquor  dealers  would 
produce  at  least  $5,000,000,  and  many  of  the  liquor  dealers  then  be 
burdened  less  than  they  are  now.  Could  any  legislation  be  author- 
ized that  would  be  more  acceptable  to  the  vast  body  of  taxpayers  in 
this  State? 

This  is  a  great  subject,  Mr.  Chairman,  and  I  do  not  wish  any 
vote  to  be  taken  upon  it  at  this  time.  I  shall  give  way  to 
Mr.  Tekulsky,  who  wishes  to  be  heard.  After  he  has  concluded, 
unless  some  other  member  desires  to  speak,  I  shall  submit  ;an 
amendment  to  my  proposition,  guaranteeing  local  option,  and  will 
then  move  that  the  committee  rise  and  report  in  favor  of  recom- 
mitting the  proposition  and  that  amendment  to  the  Committee  on 
Legislative  Powers,  without  instructions,  so  that  they  may  report  it 
again,  with  the  additional  amendment  or  not,  as  they  see  fit. 
Meanwhile  I  commend  the  subject  to  the  thoughtful  consideration 
of  the  delegates,  and  I  trust  it  may  lead  finally  to  some  such  busi- 
ness-like adjustment  of  the  relations  of  the  State  to  the  liquor 
traffic  as  I  have  suggested  —  some  measure  for  the  relief  of  the 
taxpayers  of  the  State,  for  the  purification  of  our  politics,  and  still 
more  important,  that  will  banish  the  word  "  license "  from  our 
Code  —  a  word  that  is  exceedingly  obnoxious  to  a  large  number 
of  conscientious,  Christian  people. 

Mr.  Tekulsky  —  Mr.  Chairman,  owing  to  the  fact  that  there  are 
only  four  minutes  left  of  our  time  in  which  to  answer  Mr.  McKin- 
stry  and  go  into  Convention  again,  and  as  long  as  we  are  here 
now,  we  can  dispose  of  this  matter  in  another  half  hour,  can  we  not 
dispose  of  it  to-night? 

The  Chairman  —  That  cannot  be  done  without  a  motion. 

Mr.  Tekulsky  —  Then,  sir,  I  move  that  we  do  now  rise  and 
report  that  we  desire  an  extension  of  time  for  this  evening. 

Mr.  McKinstry  —  Could  we  not  have  this  subject  come  up  as 
unfinished  business  to-morrow  morning? 

The  Chairman  —  I  do  not  think  any  such  motion  can  be  made  in 
Committee  of  the  Whole. 

Mr.  Tekulsky  —  Mr.  Chairman,  I  wish  to  change  my  motion,  and 
I  desire  to  move  that  the  committee  do  now  rise  and  report  progress 
and  ask  leave  to  sit  again. 

The  Chairman  put  the  question  on  this  motion,  and  it  was  deter- 
mined in  the  affirmative. 

The  President  resumed  the  chair. 


774  REVISED  RECORD.  [Saturday, 

Mr.  Hawley  —  Mr.  President,  the  Committee  of  the  Whole  have 
had  in  consideration  proposed  constitutional  amendment  No.  387, 
entitled  "  To  amend  article  3  of  the  Constitution  in  regard  to  taking 
saloons  out  of  politics,"  and  have  made  some  progress  with  the 
same,  but  not  having  gone  through  therewith,  have  instructed  me 
to  state  that  fact  to  the  Convention,  and  ask  leave  to  sit  again. 

The  President  put  the  question  on  agreeing  to  the  report  of  the 
Committee  of  the  Whole,  and  it  was  agreed  to. 

The  President  —  Gentlemen,  the  report  is  agreed  to,  and  the 
Convention  stands  adjourned  until  to-morrow  morning  at  ten 
o'clock. 

Adjourned  to  Saturday,  August  18,  1894,  at  10  A.  M. 


Saturday  Morning,  August  18,  1894. 

The  Constitutional  Convention  of  the  State  of  New  York  met  in 
the  Assembly  Chamber,  at  the  Capitol,  Albany,  N.  Y.,  Saturday 
morning,  August  18,  1894. 

President  Choate  called  the  Convention  to  order. 
The  Rev.  John  G.  Henry  offered  prayer. 

Mr.  Acker  moved  that  the  reading  of  the  Journal  of  Friday, 
August  seventeenth,  be  dispensed  with,  and  that  it  stand  approved. 

The  President  put  the  question  on  Mr.  Acker's  motion,  and  it 
was  determined  in  the  affirmative. 

Mr.  Hedges  —  Mr.  President,  I  have  attended  the  Convention 
at  every  session,  except  one.  I  have  sat  here  this  week  feeling  that 
in  justice  to  my  health 'I  should  not  have  done  so,  and  I  ask,  in 
order  to  be  placed  under  a  physician's  care,  to  be  excused  this 
afternoon  and  on  Monday. 

The  President  put  the  question  on  the  request  of  Mr.  Hedges  to 
be  excused  from  attendance,  and  he  was  so  excused. 

Mr.  Vedder  —  Mr.  President,  I  would  like  to  ask  a  question, 
upon  the  answer  to  which  I  would  like  to  predicate  a  motion,  and 
that  is  this:  I  would  like  to  ask  the  President  what  is  the  status 
of  the  amendment  which  was  under  consideration  in  Committee  of 
the  Whole  last  evening,  general  order  No.  14,  printed  No.  378,  in 
regard  to  extra  compensation  to  public  officers? 

The  President  —  It  was  defeated  after  being  reported  favorably 
by  the  Committee  of  the  Wrhole,  by  a  vote  of  fifty-four  to  fifty-two. 

Mr.  Vedder  —  That  is,  the  report  of  the  Committee  of  the  Whole 


August  18.]  CONSTITUTIONAL  CONVENTION.  775 

recommending  its  passage  was  not  adopted.  Now,  in  what  condi- 
tion does  that  leave  the  proposition? 

The  President  —  It  was  declared  by  the  Chair  to  mean  the  defeat 
of  the  proposition.  The  Chair  came  to  that  conclusion  upon  the 
examination  of  the  rules. 

Mr.  Yedder  —  Now,  Mr.  President,  I  make  this  motion,  to  recon- 
sider the  vote  by  which  the  report  of  the  Committee  of  the  \Yhole 
was  defeated,  for  the,  purpose,  if  carried,  of  having  the  proposition 
referred  back  to  the  Committee  on  Legislative  Powers  and  Duties, 
which  reported  it,  and  I  will  state  my  reasons.  I  think  the 
proposition  is  still  on  general  orders.  This  seems  to  be  the  condi- 
tion of  it :  It  was  reported  favorably,  the  favorable  report  agreed  to, 
and  it  went  into  the  Committee  of  the  Whole.  That  is  the  regular 
order  which  such  propositions  always  take.  It  was  thus  traveling 
on  its  course  along  this  vale  of  life  somewhat  tumultuously,  it  is 
true,  and  finally  upon  its  progress  it  received  a  blow,  which,  in  the 
language  of  the  ring,  "  put  it  to  sleep."  It  is  not,  however,  "  out 
of  the  ring,"  in  my  opinion;  it  is  simply  in  a  sort  of  parliamentary 
trance,  it  is  inactive.  But  I  am  not  disposed  to  contend  with  the 
President  upon  his  ruling,  and  will  take  the  other  course,  which  is 
certainly  open,  and  that  is  to  move  a  reconsideration  of  the  vote 
by  which  the  report  of  the  committee  was  disagreed  to,  for  the 
purpose,  which  I  believe  the  Convention  will  say  is  courteous,  that 
if  it  is  to  be  finally  buried,  it  should  be  done  by  the  friends  of  the 
bill,  to  wit,  the  committee  which  reported  the  bill  favorably  to  the 
Convention.  Another  consideration,  Mr.  President,  which  I  desire 
to  urge,  is  this  that  it  might  be  amended  in  the  Committee  on 
Legislative  Powers  in  a  way  which  will  be  entirely  satisfactory  to 
a  very  large  majority  of  the  Convention.  It  certainly  would  not 
come  back  in  the  condition  in  which  it  now  is.  There  are  many 
things  about  it  that  the  Convention  did  not  seem  to  understand. 
There  were  many  questions  asked  which  could  not  be  immediately 
answered,  but  I  believe  that  it  has  the  germ  of  a  principle  in  it 
which  is  of  importance,  and  that  the  committee  ought  to  be  per- 
mitted to  try  again,  to  see  if  they  cannot  get  something  which 
will  be  satisfactory  to  the  Convention.  This  is  a  courtesy,  I  believe, 
which,  in  legislative  bodies,  has  never  been  denied.  I  believe  that 
this  Convention  will  not  deny  it,  when  asked  for  in  the  way  it  is  by 
the  Committee  on  Legislative  Powers. 

Mr.  McKinstry  —  Mr.  President,  I  rise  to  a  point  of  order.  I 
think  Mr.  Vedder,  having  voted  with  the  minority,  cannot  make  that 
motion.  At  the  same  time  I  would  say  that  I  would  be  glad  to 
see  the  matter  reconsidered,  and,  if  the  measure  can  be  made  a 


776  REVISED  RECORD.  [Saturday. 

great  deal  less  sweeping,  so  as  simply  to  prohibit  the  Legislature 
from  interfering  with  our  local  matters,  I  would  be  glad  to  see 
the  bill  brought  in  again  in  a  different  shape,  and  I  will  make  the 
motion,  which  he  has  no  right  to  make. 

The  President  —  Mr.  McKinstry  voted  with  the  majority? 
Mr.  McKinstry  —  With  the  majority. 

The  President  —  There  is  no  doubt  about  the  propriety  of  the 
motion.  The  ruling  of  the  Chair  as  to  the  effect  of  the  vote  by 
which  the  favorable  report  of  the  Committee  of  the  Whole  was 
held  to  be  a  defeat  of  the  amendment,  is  not  provided  for  by  the 
rules,  and,  of  course,  is  subject  to  the  consideration  of  the  Conven- 
tion in  the  future.  If  the  Chair  is  wrong,  it  can  be  corrected. 
Mr.  McKinstry  moves  that  the  vote  by  which  the  report  of  the  com- 
mittee on  the  amendment  referred  to  was  disagreed  to  be  recon- 
sidered. That  question  is  now  open  for  consideration. 

The  President  put  the  question  on  the  motion,  and,  by  a  rising 
vote,  it  was  determined  in  the  affirmative.  Ayes,  55;  noes,  38. 

The  President  —  The  matter  is  now  before  the  Convention. 

Mr.  Vedder  —  I  move  that  the  proposition  be  referred  to  the 
Committee  on  Legislative  Powers. 

The  President  —  For  a  further  report? 

Mr.  Vedder  —  For  a  further  report. 

Mr.  Cochran  —  Mr.  President,  I  do  not  understand  that  that  is 
properly  before  the  Convention  yet.  We  have  only  moved  to  recon- 
sider the  vote.  I  think  now  we  will  have  to  take  a  vote  on  the 
report  of  the  committee,  on  what  we  shall  do  with  the  report. 

The  President  —  I  think  Mr.  Cochran's  point  of  order  is  well 
taken.  The  question  is  now  upon  agreeing  to  the  report  of  the 
committee. 

Mr.  Vedder  —  Mr.  President,  it  was  perfectly  competent,  when 
the  Committee  of  the  Whole  made  its  report  to  the  Convention  last 
night  recommending  the  passage  of  the  amendment,  to  make  a 
motion  at  that  time  that  it  be  referred  back  to  the  committee  to 
strike  out  the  enacting  clause  to  amend  it  in  a  certain  way,  or  any 
other  motion.  That  was  perfectly  competent,  and  is  now  to  send 
it  back  to  the  committee  or  make  any  other  disposition  in  regard 
to  it. 

The  President  —  The  rule  always  acted  upon  thus  far  has  been 
that  when  the  report  of  the  Committee  of  the  Whole  came  in  the 
only  question  is  on  agreeing  or  disagreeing  to  that  report,  after 
which  the  matter  is  in  the  hands  of  the  Convention.  The  question 


August  18.]  CONSTITUTIONAL  CONVENTION.  777 

is  on  agreeing  to  the  report  of  the  Committee  of  the  Whole  favor- 
able to  the  passage  of  this  amendment.  Is  the  Convention  ready 
for  the  question? 

Mr.  Dean  —  Mr.  President,  on  that  I  call  for  the  ayes  and  noes. 
The  ayes  and  noes  were  ordered. 

Air.  Doty  —  Mr.  President,  I  rise  to  a  point  of  inquiry.  I  under- 
stood that  the  matter  was  to  be  presented  to  the  Convention,  to  the 
end  that  the  report  should  be  recommitted;  and  I  think  that  the 
Convention  has  acted  thus  far  on  an  entire  misapprehension.  It 
is  not  intended  to  review  its  action  of  last  night,  by  which  the 
report  of  the  Committee  of  the  Whole  was  disagreed  to.  We  find 
ourselves  now  in  a  predicament  which  was  not  anticipated. 
I  apprehend,  when  this  motion  to  reconsider  was  made.  I  would 
ask  the  Chair  to  state  the  situation  of  this  matter. 

The  President  —  The  situation  is  this :  Yesterday  the  Convention 
disagreed  to  the  report  of  the  Committee  of  the  Whole,  which  the 
Chair  held  defeated  the  amendment.  That  was  by  a  vote  of  fifty- 
five  ayes  and  fifty-eight  noes.  Mr.  Vedder  moves  this  morning  to 
reconsider  that  vote.  He  stated  that  he  intended  afterwards  to 
make  a  motion  to  recommit  it  to  the  committee  of  which  he  is 
chairman,  the  Committee  on  Legislative  Powers  and  Duties.  The 
only  vote  taken  thus  far  was  to  reconsider  the  vote  of  yesterday, 
whether  or  not  to  agree  to  the  report  of  the  Committee  of  the 
Whole.  The  Chair  holds  that  the  question  necessarily  before  the 
House  is,  as  yesterday,  whether  we  will  agree  to  the  report  of  the 
Committee  of  the  Whole? 

Mr.  Vedder  —  Now,  Mr.  President,  I  desire  to  amend  that  report 
of  the  Committee  of  the  Whole  that  the  proposition  be  referred  to 
the  Committee  on  Legislative  Powers.  I  think  that  is  a  competent 
amendment  to  make,  and  that  it  supersedes  the  other  motion  abso- 
lutely, a  motion  that  is  always  made  or  always  can  be  made  in  any 
parliamentary  body  in  which  I  ever  sat. 

The  President  —  The  Chair  is  of  the  opinion  that  when  a  report 
of  the  Committee  of  the  Whole  is  before  the  House  the  question 
is  first  to  agree  or  disagree. 

Mr.  Alvord  —  Mr.  President,  I  desire  to  say  that  my  friend 
from  Cattaraugus  is  wrong.  We  have  not  yet  reconsidered  the  vote. 
That  must  first  be  done  before  it  is  in  the  possession  of  the 
Convention. 

Mr.  McMillan  —  We  have  done  that  already. 


778  REVISED  RECORD.  [Saturday, 

Mr.  Vedder  —  Mr.  President,  I  believe  we  have  reconsidered  the 
vote. 

The  President  —  We  have  only  voted  to  reconsider  it. 

Mr.  Alvord  —  I  am  informed  it  has  been  reconsidered.  If  it  has 
been  reconsidered,  then  the  gentleman  from  Cattaraugus  is  right. 
There  is  no  question  in  regard  to  the  matter.  It  is  now  before  the 
Convention,  and  can  be  done  with  as  the  Convention  sees  fit  to  do 
by  its  vote. 

Mr.  Vedder  —  That  is  just  exactly,  Mr.  President,  what  I  claim. 

The  President  —  The  difficulty  is,  Mr.  Vedder,  that  it  has  not  yet 
been  reconsidered.  The  Convention  has  only  voted  to  reconsider  it. 

Mr.  Vedder  —  Mr.  President,  I  submit  that  was  a  vote  on  recon- 
sideration and  that  the  matter  is  now  before  the  Convention.  Now, 
the  proposition  before  the  Convention  is:  Shall  we  agree  with  the 
report  of  the  Committee  of  the  Whole  or  not? 

The  President  —  That  is  exactly  what  the  Chair  holds. 

Mr.  Veeder  —  The  Chair,  in  effect,  holds,  if  he  holds  the  motion 
of  the  gentleman  from  Cattaraugus  (Mr.  Vedder)  out  of  order,  that 
at  this  stage  of  the  proceedings  no  other  motion  is  in  order,  except 
the  one  to  agree  or  disagree  to  the  report  of  the  Committee  of  the 
Whole. 

The  President  —  The  Chair  does  so  hold.  The  report  of  the 
Committee  of  the  Whole  is  received.  The  only  business  before  the 
Convention  is  the  question  whether  that  report  shall  be  agreed  to  or 
not. 

Mr.  Veeder  —  Does  the  Chair  hold  that  the  motion  to  amend  that 
motion  is  not  in  order? 

The  President  —  I  do.  . 

Mr.  Veeder  —  Now,  Mr.  President,  I  desire  to  ask,  proceeding 
under  the  decision  of  the  Chair,  if  this  motion  to  disagree  with 
the  report  of  the  committee  is  adopted,  what  position  are  we  in 
then?  We  are  in  the  same  position  that  we  were  in  before  the 
motion  to  reconsider  was  made.  There  we  are,  and  we  can  make  a 
motion  again  to  reconsider. 

The  President  —  You  can  recommit  afterwards. 

Mr.  Veeder  —  How  can  we  recommit  after  we  have  disposed  of 
it?  WThile  the  matter  is  open  we  can  recommit  or  do  anything 
else  we  like  with  it,  but  if  it  is  an  open  question,  after  we  have 
refused  to  accept  the  report  and  reject  it,  then  the  only  procedure 
is  to  do  as  we  have  just  done,  reconsider  the  vote  by  which  it  is 


August  18.]  CONSTITUTIONAL  CONVENTION.  779 

rejected;  and  so  we  do  not  accomplish  anything.     We  are  going 
right  in  a  circle. 

The  President  —  We  dispose  of  the  report  of  the  Committee  of 
the  Whole  first. 

Mr.  W.  H.  Steele  —  Mr.  President,  if  I  might  be  heard  for  a 
moment  on  this  question,  I  think  the  Chair  is  right,  and  the  Chair 
is  also  laboring  under  a  misapprehension,  in  reference  to  this  ques- 
tion. We  are  now,  as  I  suppose,  under  the  rules  as  adopted  by  the 
Convention,  but  where  those  rules  are  not  broad  enough,  as  is  the 
custom  of  all  legislative  bodies  of  this  State,  reference  is  had  to 
Croswell's  Manual.  It  is  done  in  the  Legislature,  both  in  the 
Assembly  and  the  Senate.  If  the  Convention  will  be  good  enough 
to  look  at  the  bottom  of  page  197  and  the  top  of  page  198,  it  reads 
as  follows,  if  the  Convention  will  allow  me  to  read  it:  "If  they 
report  progress,  and  ask  leave  to  sit  again,  the  usual  form  of  such 
a  report,  the  question  of  granting  leave,  may  be  superseded  by  a 
motion  to  discharge  the  Committee  of  the  Whole  and  to  order  the 
bill  to  a  third  reading,  or  to  discharge  and  commit,  or  to  lay  on 
the  table,  or  to  postpone,  or  to  grant  leave  to  sit  again,  and  make 
the  bill  a  special  order"  Now,  my  understanding  of  the  situation 
is  this,  that  this  vote  having  been  reconsidered  the  proposition 
remains  in  precisely  the  form  under  which  it  came  from  the  Com- 
mittee of  the  Whole.  Before  any  further  motion  can  be  put,  any 
gentleman  has  a  right  to  move  to  supersede  the  ordinary  motion 
of  granting  leave  to  sit  again,  or  disagreeing  with  the  committee, 
by  a  motion  to  refer  to  a  committee.  Otherwise  he  would  be 
deprived  of  his  rights.  If  the  motion  prevails  that  they  should 
have  leave  to  sit  again,  he  is  out  in  the  cold;  if  it  is  to  disagree  with 
the  committee,  he  is  certainly  out  in  the  cold,  unless  we  reconsider. 

Mr.  Dean  —  I  rise  to  a  point  of  order,  that  a  discussion  of  the 
ruling  of  the  Chair  without  appealing  from  the  ruling,  is  out  of 
order. 

The  President  —  The  point  of  order  is  well  taken.  A  report  is 
received  from  the  Committee  of  the  Whole  favorable  to  the  passage 
of  the  bill.  The  question  is  on  agreeing  or  disagreeing  to  that 
report.  That,  I  believe,  is  the  only  question.  Agreeing  to  the 
report  does  not  take  it  out  of  the  hands  of  the  Convention.  Agree- 
ing to  the  report  will  place  it  in  the  position  in  which,  if  no  further 
action  is  taken,  it  will,  as  a  matter  of  course,  go  to  the  Committee 
on  Revision;  but  it  can  be  intercepted  at  that  point,  as  bills  have 
heretofore  been  intercepted  and  laid  upon  the  table.  There  is  no 
difficulty  in  a  motion,  after  the  report  has  been  agreed  to,  to  recom- 


780  REVISED  RECORD.  [Saturday, 

mit  the  bill,  and,  if  the  Convention  so  pleases,  to  recommit  it  to  the 
committee  from  which  it  originated,  or  to  any  other  committee. 

Mr.  Veeder  —  Suppose,  Mr.  President,  the  motion  is  not  agreed 
to.  Suppose  it  is  rejected? 

The  President  —  Then  that  defeats  the  amendment. 

Mr.  Veeder  —  Well,  but  then  we  move  to  reconsider  the  vote 
again,  and  so  we  go  in  the  same  circle. 

Mr.  Mulqueen  —  May  I  ask,  Mr.  President,  if  it  is  in  order  to 
move  to  postpone  this  matter  until  action  has  been  taken  on  the 
report  of  the  Committee  on  Cities? 

The  President  —  That  will  be  in  order. 

Mr.   Mulqueen  —  I   make  that  motion. 

Mr.  Vedder  —  Mr.  President,  I  rise  to  a  question  of  privilege, 
simply  to  answer  Mr.  Doty,  and  to  keep  good  faith  with  this  Con- 
vention. However  much  I  might  have  any  proposition  in  the  world 
at  heart,  I  never  would  break  faith  with  this  Convention  or  with 
any  man.  My  only  object  in  making  the  motion  to  reconsider  was 
to  send  it  back  to  the  Committee  on  Legislative  Powers.  I  say 
now  that  if  this  Convention  will  do  the  courtesy  to  that  committee 
to  report  in  favor  of  the  report  of  the  Committee  of  the  Whole, 
sending  it  to  a  third  reading,  I  will  immediately  move  the  Con- 
vention to  have  it  sent  to  the  Committee  on  Legislative  Powers. 

The  President  —  The  question  is  on  Mr.  Mulqueen's  motion  to 
postpone  the  consideration  of  the  question  before  the  House,  which 
is  the  motion  to  agree  to  the  report  of  the  Committee  of  the  Whole, 
until  after  the  action  of  the  Convention  on  the  report  of  the  Com- 
mittee on  Cities. 

The  President  put  the  question  on  Mr.  Mulqueen's  motion  to 
postpone,  and  it  was  determined  in  the  negative. 

The  President  —  The  motion  is  lost,  and  the  question  is  on  agree- 
ing with  the  report  of  the  Committee  of  the  Whole. 

Mr.  Cochran  called  for  the  ayes,  and  noes,  which  were  ordered. 

The  Secretary  proceeded  to  call  the  roll. 

Mr.  Osborn  —  Mr.  President,  there  is  great  misunderstanding  in 
this  part  of  the  Convention  as  to  what  a  vote  in  the  affirmative  of 
in  the  negative  upon  this  subject  would  mean.  I  desire  to  know 
what  the  report  of  the  Committee  of  the  Whole  was. 

The  President — The  report  of  the  committee,  by  a  vote  of 
fifty-four  to  fifty-two,  recommended  the  passage  of  the  amendment 
prohibiting  extra  compensation  or  increase  of  salary  to  public 
officers. 


August  i8.J  CONSTITUTIONAL  CONVENTION.  781 

Mr.  Osborn  —  If,  therefore,  we  vote  aye  on  this  measure  upon 
this  roll-call,  we  vote  in  favor  of  the  measure? 

The  President  —  Yes. 

Mr.  Osborn  —  And  if  we  vote  no,  we  vote  in  opposition  to  the 
measure? 

The  President  —  Yes;  and,  as  the  Chair  has  ruled,  subject  to  cor- 
rection by  the  House,  a  negative  vote  on  this  finally  defeats  the 
amendment. 

Mr.  Vedder  —  Mr.  President,  there  seems  to  be  a  misunderstand- 
ing among  the  delegates.  Let  me  ask  this  question.  If  this  motion 
is  carried,  agreeing  to  the  report  of  the  Committee  of  the  Whole 
and  sending  it  to  a  third  reading,  I  can  then  make  a  motion,  can  I 
not,  to  refer  it  to  the  committee? 

The  President  —  The  Chair  so  holds. 

Mr.  Vedder  —  But,  if  the  vote  is  in  the  negative,  I  cannot? 

The  President  —  You  cannot.     It  defeats  the  amendment. 

Mr.  Mulqueen  —  Mr.  President,  may  I  ask  for  information? 
The  gentleman  might  make  a  motion  to  recommit,  but  the  Con- 
vention might  vote  it  down,  and,  if  it  voted  it  down,  that  would 
be  passing  the  amendment? 

The  President  —  We  will  consider  difficulties  as  they  arise. 

Mr.  Alvord  —  Mr.  President,  I  rise  to  a  point  of  order.  My  point 
of  order  is  that  this  undertaking  to  catechise  the  Chair  is  all  wrong 
and  should  be  ruled  out  of  order.  The  only  way,  after  the  Chair 
has  once  stated  his  decision,  is  to  ask  that  the  decision  be  over- 
turned by  the  House  by  an  appeal ;  but  this  is  entirely  out  of  order. 

The  President  —  Well,  the  Chair  can  stand  it  if  the  Conven- 
tion can. 

Mr.  Alvord  —  I  think  it  is  entirely  unauthorized  and  an  unpar- 
liamentary procedure. 

The  Secretary  proceeded  with  the  roll-call. 

Mr.  Ackerly  —  Mr.  President,  yesterday  I  voted  both  on  the 
rising  vote  and  on  a  call  of  the  ayes  and  noes  in  favor  of  this 
amendment,  but  after  the  discussion  that  we  had  yesterday  upon  this 
proposition,  I  say  when  we  settle  a  thing,  let  us  settle  it. 
(Applause.)  I  vote  no. 

Mr.  Crosby  —  Mr.  President,  I  desire  to  be  excused  from  vot- 
ing, and  state  my  reasons  therefor.  Last  night  I  recorded  my 
vote  against  the  proposition.  Now,  believing  that  amendments 
can  be  made  that  will  make  it  entirely  satisfactory,  if  referred  back 


782  REVISED  RECORD.  [Saturday, 

to  the  committee,  and  that  the  disposition  is  to  make  that  amend- 
ment, I  shall  change  my  vote.  I  desire  to  be  recorded  as  voting  aye. 

Mr.  Marshall  —  Mr.  President,  I  am  called  out,  and  am  obliged 
to  leave  the  Convention,  and  I  ask  to  be  recorded  in  the  negative. 

Mr.  McKinstry  —  I  ask  to  be  excused  from  voting,  and  will 
state  my  reasons.  I  voted  against  this  amendment  yesterday,  and 
I  am  just  as  much  opposed  to  it  to-day  as  I  was  then,  but  there  is  a 
principle  in  it  of  affecting  legislation,  and  not  interfering  with  every 
local  board  of  supervisors  and  board  of  trustees,  which  I  think  is 
desirable.  It  seems  to  me  only  a  matter  of  courtesy  to  let  the  Com- 
mittee on  Legislative  Powers  remodel  it  and  make  it  acceptable, 
if  they  can.  I,  therefore,  withdraw  my  request  to  be  excused  from 
ing,  and  I  vote  aye. 

Mr.  McMillan  —  Mr.  President,  I  ask  to  be  excused  from  voting, 
and  will  state  my  reasons.  I  am  in  favor  of  the  principle  involved 
in  this  proposed  amendment.  In  its  present  form  I  regard  it  as  dan- 
gerous. I  cannot,  therefore,  consent,  by  my  vote,  to  order  this  bill 
to  a  third  reading.  I,  therefore,  withdraw  my  request  to  be 
excused  from  voting,  and  vote  no. 

Mr.  Nichols  —  Mr.  President,  I  ask  to  be  excused  from  voting, 
and  will  briefly  state  my  reasons.  I  believe,  sir,  that  the  principle 
involved  in  this  bill  is  right.  I  do  not  think  that  it  ought  to  be 
possible,  in  very  many  instances,  to  increase  salaries  after  officers 
are  inducted  into  office.  I  did  not  agree,  however,  with  the  bill 
as  it  was  introduced.  It  seems  to  me  that  it  can  be  sent  back  to 
the  committee  and  modifications  made  that  will  recognize  the 
principle,  and  at  the  same  time  do  no  violence  to  the  rights  of 
smaller  municipalities  or  departments  of  government,  and  for  that 
reason  I  desire  to  withdraw  -my  application  to  be  excused  from  vot- 
ing, and  vote  aye. 

Mr.  Platzek  —  Mr.  President,  I  ask  to  be  excused  from  voting 
for  these  reasons:  I  believe  that  the  amendment,  as  framed,  would 
affect  numerous  people  —  hidden  beneath  or  between  the  lines  of 
the  amendment.  I  believe,  further,  that  very  community  is  capable 
of  taking  care  of  its  own  affairs  to  the  extent  of  fixing  the  compen- 
sation of  its  officers  and  servants,  and  that  no  community,  common 
council  or  Legislature,  or  other  body  having  the  right  to  fix  com- 
pensation, ought  to  be  bound  down  by  constitutional  declaration. 
I  withdraw  my  request  to  be  excused  from  voting,  and  vote  no. 

Mr.  T.  A.  Sullivan  —  Mr.  President,  I  ask  to  be  excused  from 
voting,  and  briefly  state  my  reasons.  Last  night  I  was  unable  to 
vote  upon  this  measure,  because  I  was  uncertain  as  to  its  scope  and 


August  18.]  CONSTITUTIONAL  CONVENTION.    .  783 

effect  in  its  present  form.  I  ask  to  be  excused  for  that  reason, 
because  I  did  not  wish  to  go  upon  the  record  here  opposed  to  the 
principle  of  it,  as  I  must  necessarily  have  been,  had  I  been  forced 
to  a  vote  last  night.  The  courts  of  our  State  have  put  such  a  con- 
struction upon  the  plain  intent  of  this  provision  in  our  Constitution 
that  it  practically  obviated  a  great  portion  of  it,  so  that  in  my  own 
city,  within  the  past  two  years,  we  have  had  the  Legislature  pass 
an  act  to  increase  the  pay  of  our  police  commissioners,  and  our 
city  had  no  redress.  .We  went  into  the  courts,  and  the  extra  com- 
pensation was  given  to  those  commissioners  without  any  added 
duties.  By  reason  of  the  construction  of  the  present  Constitution 
the  Legislature  was  able,  in  direct  contravention  to  the  provisions 
of  our  charter,  in  reference  to  raising  the  salary  of  our  officers. 
I  desire  that  this  bill  shall  go  back,  and,  if  possible,  be  so  corrected 
as  to  obviate  the  constructions  and  get  away  from  the  decisions 
which  the  courts  have  made.  For  that  reason,  I  withdraw  my 
present  application  to  be  excused  from  voting,  and  vote  aye. 

Mr.  Cassidy  —  Mr.  President,  I  refrain  from  speaking  upon  this 
amendment,  because  there  are  parts  of  it  which  I  approve  of,  and 
parts  of  it  that  I  do  not  approve  of.  The  only  idea  of  home  rule 
which  I  can  subscribe  to  is  a  uniform  home  rule  for  all  parts  of  the 
State  alike,  and  that  kind  of  home  rule  can  only  be  obtained  by 
shearing  the  Legislature  of  certain  of  its  powers,  so  as  not  to  inter- 
fere with  local  matters.  In  so  far  as  this  amendment  seeks  to  shear 
the  Legislature  of  its  powers  from  interfering  with  local  matters,  I 
approve  of  it.  In  so  far  as  it  seeks  to  obstruct  and  defeat  the  wishes 
of  the  local  authorities,  I  am  opposed  to  it.  One  part  of  the  amend- 
ment is  at  war  with  the  other  part.  I  believe,  however,  in  the  prin- 
ciple of  restricting  the  Legislature  from  interference  in  local 
matters.  I,  therefore,  vote  aye,  that  this  matter  may  be  sent  to 
the  committee  and  properly  revised. 

Mr.  Davies  —  I  ask  to  be  excused  from  voting,  and  will  briefly 
state  my  reasons.  I  am  opposed  to  this  amendment  as  it  stands 
now.  Still,  I  am  willing,  upon  the  understanding  of  its  friends,  to 
have  it  sent  back  to  the  committee  for  amendment.  It  may  come 
before  us  in  less  objectionable  form.  I,  therefore,  withdraw  my 
request  to  be  excused  from  voting,  and  vote  aye. 

Mr.  Moore  —  Mr.  President,  I  ask  to  be  excused  from  voting, 
and  will  briefly  state  my  reasons.  I  voted  no  last  night  upon  the 
proposition  as  it  then  stood,  because  I  was  not  quite  satisfied  as 
to  how  far  this  amendment  might  reach.  But,  as  I  understand  this 
proposition,  it  is  a  motion  to  send  the  whole  matter  back  to  the 
committee,  the  chairman  of  which  thinks  that  there  may  be  some 


784  REVISED  RECORD.  [Saturday, 

amendments  made  to  the  matter  which  will  suit  the  Conventioa 
and  be  of  some  service  to  the  people  of  the  State.  I,  therefore, 
on  this  question,  will  withdraw  my  request  to  be  excused  from  vot- 
ing, and  will  vote  aye. 

The  report  of  the  committee  was  agreed  to  by  the  following  vote: 
Ayes  —  Messrs.  Abbott,  Acker,  Allaben,  Baker,  Barhite,  Brown, 
E.  A.,  Carter,  Cassidy,  Church,  Clark,  H.  A.,  Countryman,  Crosby, 
Davies,  Davis,  Deterling,  Emmet,  Floyd,  Francis,  Fuller,  C.  A., 
Fuller,  O.  A.,  Galinger,  Hamlin,  Hecker,  Hedges,  Hill,  Jacobs, 
Johnson,  J.,  Kerwin,  Kinkel,  Kurth,  Lester,  Lewis,  C.  H.,  Lyon, 
Mantanye,  Maybee,  McDonough,  Mclntyre,  McKinstry,  Mereness, 
Moore,  Morton,  Nichols,  Nicoll,  O'Brien,  Parker,  Pashley,  Powell, 
Pratt,  Redman,  Rogers,  Sandford,  Schumaker,  Steele,  W.  H., 
Storm,  Sullivan,  T.  A.,  Sullivan,  W.,  Turner,  Vedder,  Veeder, 
Vogt,  Wellington,  Whitmyer,  Woodward  —  63. 

Noes  —  Messrs.  Ackerly,  Alvord,  Barnum,  Barrow,  Blake,  Burr, 
Cady,  Campbell,  Chipp,  Jr.,  Cochran,  Cookinham,  Davenport,  Dean, 
Doty,  Durfee,  Frank,  Augustus,  Fraser,  Giegerich,  Gilleran,  Goel- 
ler,  Green,  J.  I.,  Hawley,  Hirschberg,  Holcomb,  Holls,  Lincoln, 
Marks,  Marshall,  McArthur,  McLaughlin,  C.  B.,  McLaughlin, 
J.  W.,  McMillan,  Meyenborg,  Mulqueen,  Ohmeis,  Osborn,  Park- 
hurst,  Peabody,  Platzek,  Putnam,  Root,  Smith,  Steele,  A.  B., 
Tekulsky,  Titus,  Truax,  C.  H.,  Tucker,  Williams,  President  —  49. 

The  President  —  The  report  of  the  Committee  of  the  Whole  is 
agreed  to.  In  the  ordinary  course,  this  would  now  go  to  the  Com- 
mittee on  Revision  for  their  action.  It  will  take  that  course,  unless 
the  House  makes  some  other  disposition. 

Mr.  Vedder  —  Mr.  President,  I  move  that  this  proposition  be 
referred  back  to  the  Committee  on  Legislative  Powers,  retaining 
its  place  on  general  orders. 

Mr.  Veeder  —  It  is  not  on  general  orders.  Let  it  retain  its 
place  on  the  calendar  for  amendments  to  go  to  the  Committee  on 
Revision.  We  do  not  object  to  that. 

The  President  —  It  will  retain  its  place  on  the  calendar.  The 
Secretary  will  take  care  of  that. 

The  President  put  the  question  on  Mr.  Vedder's  motion,  and  it 
was  determined  in  the  affirmative. 

Mr.  Goeller  —  Mr.  President,  I  desire  to  be  excused  from  attend- 
ance next  Monday,  and  desire  to  say  that  since  the  opening  of  this 
Convention  my  attendance  has  been  permanent,  with  but  three 
exceptions,  four  days'  time.  I  beg  the  indulgence  of  the  Conven- 
tion for  this  one  day. 


August  18.]  CONSTITUTIONAL  CONVENTION.  785 

The  President  put  the  question  on  Mr.  Goeller's  request  to  be 
excused  from  attendance,  and  he  was  so  excused. 

Mr.  Lyon  —  Mr.  President,  the  Document  Clerk  tells  me  that 
only  1,000  copies  of  the  proposed  amendment  of  the  judiciary  article 
have  been  printed  or  ordered  printed,  while  5,000  copies  of  both 
reports  have  been  ordered  printed.  It  seems  to  me  that  there 
should  be  4,000  copies  more  of  the  judiciary  amendment. 

The  President  —  Five  thousand  copies  have  been  ordered  by  the 
Convention. 

Mr.  Lyon  —  There  seems  to  be  a  misunderstanding,  as  the  Docu- 
ment Clerk  says  only  1,000  copies  have  been  ordered. 
The  President  —  Memorials  and  petitions  are  in  order. 

Mr.  Holcomb  —  Mr.  President,  I  am  called  by  business  to  the 
western  part  of  the  State,  and  I  would  like  to  be  excused,  if  I  may, 
from  attendance  upon  the  session  this  afternoon.  The  matter  is 
very  pressing  and  I  must  go. 

The  President  put  the  question  on  Mr.  Holcomb's  request  to  be 
excused  from  attendance,  and  he  was  so  excused. 

Mr.  Fraser  —  Mr.  President,  I  desire  to  be  excused  next  Mon- 
day, for  the  purpose  of  performing  a  public  duty  in  my  county. 

The  President  put  the  question  on  Mr.  Fraser's  request  to  be 
excused  from  attendance,  and  he  was  so  excused. 

Mr.  Peabody  —  I  would  like  to  be  excused  from  this  afternoon's 
session. 

The  President  put  the  question  on  Mr.  Peabody's  request  to  be 
excused  from  attendance,  and  he  was  so  excused. 

Mr.  Veeder  —  I  ask  to  be  excused  from  this  afternoon's  session. 

The  President  put  the  question  on  Mr.  Veeder's  request  to  be 
excused  from  attendance,  and  he  was  so  excused. 

Mr.  Powell  —  Mr.  President,  I  have  received  word  from  Mr. 
Johnston  that  he  is  detained  from  to-day's  session  by  unexpected 
and  very  important  business  of  a  professional  character.  I  ask  the 
Convention  to  excuse  him  from  to-day's  session. 

The  President  put  the  question  on  the  request  of  Mr.  Johnston 
to  be  excused  from  attendance  and  he  was  so  excused. 

Mr.  Nichols  —  Mr.  President,  I  desire  to  be  excused  from  attend- 
ance during  the  afternoon. 

The  President  put  the  question  on  Mr.  Nichols's  request  to  be 
excused  from  attendance,  and  he  was  so  excused. 
50 


786  REVISED  RECORD.  [Saturday, 

The  President  —  The  Convention  will  bear  in  mind  that  they 
are  responsible  for  holding  a  quorum  here  this  afternoon. 

Mr.  Osborn  —  Mr.  President,  I  should  like  to  inquire  whether 
there  is  any  means  of  knowing  whether  there  will  be  a  quorum  here 
this  afternoon.  Has  the  Secretary  kept  a  list  of  the  members  who 
are  excused? 

The  President  —  Forty-eight  members  have  been  excused.  If 
all  the  rest  attend  there  will  be  a  quorum. 

Mr.  Osborn  —  Mr.  President,  I  desire  to  make  a  statement.  In 
view  of  the  remarks  of  the  President  yesterday,  with  regard  to  the 
propriety  of  not  being  excused  and  saving  our  ten  dollars,  in  which 
I  concur,  I  have  concluded  that  it  would  be  impolite  for  me  to  absent 
myself  without  stating  to  the  Chair  that  such  is  my  intention.  On 
the  other  hand,  as  the  physical  test  which  we  have  been  put  to  this 
week  has  been  more  than  my  health  will  stand,  I  propose  to  absent 
myself  from  the  Convention  this  afternoon.  I  say  this  by  way  of 
excusing  myself  from  absence. 

The  President  —  Gentlemen  will  take  note  of  Mr.  Osborn's 
statement. 

Mr.  H.  A.  Clark  —  I  move  that  the  gentleman  be  excused  for  this 
afternoon. 

The  President  put  the  question  on  the  request  of  Mr.  Osborn, 
and  he  was  so  excused. 

Mr.  C.  B.  McLaughlin  —  Mr.  President,  I  offer  the  following 
resolution : 

Resolved,  That  the  Committee  on  Rules  be  instructed  to  report  a 
rule,  on  or  before  Tuesday  next,  to  the  effect  that  a  disagreement 
with  the  report  of  the  Committee  of  the  Whole  shall  be  final. 

Mr.  President,  I  desire  to  say  just  one  word  on  this  resolution. 

Mr.  Barhite  —  Mr.  President,  is  the  resolution  debatable  at  this 
time? 

The  President  —  It  is,  by  general  consent. 

Mr.  Dean  —  I  object. 

The  President  —  Do  you  wish  to  debate  it? 

Mr.  Barhite  —  I  do. 

The  President  —  It  stands  over  until  Monday. 

Mr.  C.  B.  McLaughlin  —  Mr.  President,  is  that  resolution  referred 
to  the  Committee  on  Rules?  Do  I  understand  the  Chair  to  rule 
that  it  is  not  debatable  now? 

Mr.  Dean  —  I  call  the  Chair's  attention  to  rule  56. 


August  18.]  CONSTITUTIONAL  CONVENTION.  787 

Mr.  C.  B.  McLaughlin  —  It  calls  for  action  on  the  part  of  the 
Convention  as  to  the  business  of  the  day.  It  seems  to  me  it  is  open 
for  discussion. 

The  President  —  The  Chair  is  of  the  opinion,  that  under  rule  56, 
that  this  is  not  debatable,  but  goes,  as  of  course,  to  the  Committee 
on  Rules  for  immediate  action. 

Mr.  Cookinham  offered  the  following  resolution,  which  was  read 
by  the  Secretary: 

R.  177. —  Resolved,  That  the  Committee  on  Rules  be  directed  to 
report  a  rule  allotting  time  for  debate  on  each  of  the  proposed  con- 
stitutional amendments. 

The  President  —  The  resolution  goes  to  the  Committee  on  Rules, 
as  of  course.  If  there  are  no  further  notices,  motions  or  resolutions, 
reports  of  committees  are  in  order.  The  Secretary  will  call  the  roll 
of  committees. 

Mr.  Alvord  —  Mr.  President,  in  order  to  expedite  business  at  this 
sitting,  I  move  that  the  call  be  general  for  any  reports  of  committees. 

The  President  put  the  question  on  Mr.  Alvord's  motion,  and  it 
was  determined  in  the  affirmative. 

Mr.  J.  Johnson  presented  a  report  from  the  Committee  on  Cities. 

Mr.  Woodward  —  Mr.  President,  I  have  a  minority  report  from 
the  Committee  on  Preamble  and  Bill  of  Rights. 

The  President  —  If  you  will  hand  it  up  it  will  take  its  course 
under  the  rule. 

Mr.  J.  Johnson,  from  the  Committee  on  Cities,  to  which  was 
referred  the  proposed  constitutional  amendment,  introduced  b.y  Mr. 
Banks  (introductory  No.  148),  entitled,  "  Proposed  constitutional 
amendment  to  amend  the  Constitution,  relative  to  debt  limitation  of 
cities,"  reports  in  favor  of  the  passage  of  the  same,  with  some 
amendments. 

The  President  —  It  goes  to  the  Committee  of  the  Whole. 

Mr.  Holls  —  Mr.  President,  I  have  a  report  from  the  Committee 
on  Education. 

Mr.  Veeder  —  If  Mr.  Holls  will  give  way  for  a  moment.  Pre- 
ceding that,  I  understand,  is  a  minority  report  from  the  Committee 
on  Preamble.  We  would  like  to  have  it  read,  if  the  President 
please. 

Mr.  Holls  —  If  it  preceded  mine  in  order  of  time,  I  give  way. 

The  President  —  The  minority  report  can  be  read. 


REVISED  RECORD.  [Saturday, 

The  Secretary  read  the  report  as  follows: 

The  report  of  the  minority  of  the  Committee  on  Preamble  and 
Bill  of  Rights,  proposing  to  amend  the  preamble  of  the  Constitu- 
tion and  also  to  add  several  sections  to  the  bill  of  rights.  It  is 
asked  of  the  Convention  to  substitute  the  preamble  hereto  annexed 
in  place  of  the  preamble  reported  by  the  majority  of  the  committee, 
and  that  the  several  sections  hereto  annexed  be  added  to  the  bill  of 
rights  proposed  by  such  committee  in  their  final  report,  and  become 
a  part  thereof,  to  be  numbered  in  their  proper  order.  This  report 
is  respectfully  submitted  to  the  Convention,  with  the  request  that 
it  be  sent  to  the  Committee  of  the  Whole  to  be  considered  with  the 
majority  report  of  the  committee. 

Mr.  Mereness  —  I  would  like  to  inquire  whether  this  will  neces- 
sarily have  to  be  printed? 

The  President  —  Under  rule  32,  this  constitutional  amendment 
proposed  by  the  minority  report  is  to  be  printed  and  placed  on  the 
files  of  the  members  of  the  Convention. 

Mr.  Veeder  —  Does  not  that  go  on  general  orders  with  the 
majority  report? 

The  President  —  The  Chair  rules  not.  The  minority  report 
amounts  to  nothing.  It  is  always  open  for  consideration  in  Com- 
mittee of  the  Whole.  With  the  view  to  that,  the  rules  provide  that 
it  shall  be  printed  and  placed  upon  the  desks  of  members,  and  the 
question  comes  up  in  Committee  of  the  Whole;  if  anybody  desires 
to  move  anything  from  the  minority  report  by  way  of  amendment, 
he  can  do  so. 

Mr.  Veeder  —  Mr.  President,  the  trouble  with  that  is,  that  then 
it  is  only  printed  as  a  document,  and  not  printed  as  a  proposition. 
It  is  characterized  as  a  proposition  by  the  minority  report,  but  it 
is  only  printed  as  a  document. 

The  President  —  The  minority  of  the  committee  has  not  any 
power  to  impose  an  amendment  on  the  Convention,  as  a  proposed 
amendment.  It  is  a  dissent  on  their  part  from  what  is  proposed 
by  the  majority. 

Mr.  Veeder  —  But,  Mr.  President,  if  the  majority  refuses  — 
The  President  —  The  Chair  has  made  its  ruling,  and  if  every 
ruling  of  the  Chair  is  to  be  criticised  and  quarreled  about,  the 
time  of  the  Convention  will  be  diverted  from  its  present  business. 

Mr.  Veeder  —  I  submit,  sir,  that  I  do  not  desire  to  have  it  said 
that  I  am  quarreling  with  any  ruling.  I  ask  the  President  to  with- 
draw that. 


August  18.]  CONSTITUTIONAL  CONVENTION.  789 

Mr.  Alvord  —  I  rise  to  a  point  of  order.  My  point  of  order  is, 
that  there  cannot  be  discussions  of  this  kind  going  on.  It  has  gone 
on  long  enough. 

The  President  —  That  was  the  notion  of  the  Chair  when  he  made 
the  point.  The  point  of  order  is  admirably  taken. 

Mr.  Rolls  —  Mr.  Chairman,  in  connection  with  the  report  of  the 
Committee  on  Education,  which  I  have  just  presented,  I  beg  leave 
to  state  that  that  report  contains  an  article  on  education  complete 
(overture,  introductory  No.  388,  printed  No.  439),  but  that  it  reserves 
to  itself  the  right  to  supplement  it  by  another  matter  which  has 
come  up,  and  on  which  official  action  has  not  yet  been  taken,  but 
which,  if  adopted,  might  work  as  a  substitute,  as  a  part  of  the  report 
presented.  I  also  shall  ask  that  the  Committee  on  Education  be 
permitted  to  have  a  little  more  time  in  its  explanatory  report  than 
the  twenty-first,  which  is  the  date  ordered  by  the  Convention. 

Mr.  Holls's  report  from  the  Committee  on  Education  was  referred 
to  the  Committee  of  the  Whole. 

Mr.  Rolls  —  I  now  move  that  the  time  of  the  Committee  on  Edu- 
cation to  make  an  explanatory  report  of  this  article  be  extended 
from  the  twenty-first  for  the  term  of  one  week. 

The  President  put  the  question  on  Mr.  Holls's  motion,  and  it  was 
determined  in  the  affirmative. 

Mr.  C.  H.  Lewis  —  Mr.  President,  I  have  the  final  report  of  the 
Committee  on  the  Relation  of  the  State  to  the  Indians. 

The  Secretary  read  the  report  as  follows: 

Mr.  C.  H.  Lewis,  from  the  Committee  on  the  Relation  of  the  State 
to  the  Indians  residing  therein,  to  which  was  referred  proposed 
amendment  (introductory  No.  242),  and  several  petitions  for  con- 
stitutional amendment,  respectfully  reports,  that  your  committee 
has  carefully  considered  the  same,  and  it  is  the  unanimous  judgment 
of  the  committee  that  section  16  of  article  i  of  the  present  Constitu- 
tion, relating  to  sale  of 'Indian  lands,  should  remain  unchanged. 
Your  committee  further  report  on  the  several  petitions  for  a  consti- 
tutional provision. 

Mr.  C.  H.  Lewis  —  Mr.  President,  allow  me  to  state  that  the 
proposed  amendment,  No.  242,  the  one  which  the  committee 
reported  against  the  adoption  of  was  finally  withdrawn  by  its  intro- 
ducer, and  he  is  of  the  same  opinion  as  the  committee,  that  the 
article  of  the  Constitution  in  regard  to  the  Indian  lands,  as  it  stands 
to-day  in  the  present  Constitutiona,  should  remain  unchanged,  and 
the  committee,  has,  therefore,  so  reported. 


790  REVISED  RECORD.  [Saturday, 

The  President  put  the  question  on  agreeing  to  the  report  of  the 
committee  as  to  proposed  constitutional  amendment  No.  242,  and  it 
was  determined  in  the  affirmative. 

The  president  put  the  question  on  agreeing  with  the  report  of  the 
committee  that  no  change  should  be  made  in  the  provisions  of  the 
Constitution  relating  to  Indian  lands,  and  it  was  determined  in  the 
affirmative. 

Mr.  E.  R.  Brown,  from  the  Select  Committee  on  Future  Amend- 
ments, to  which  was  referred  the  proposed  amendment  introduced 
by  Mr.  A.  H.  Green  (introductory  No.  379),  entitled  "  Proposed 
constitutional  amendment  to  prohibit  the  use  of  lands  for  cemetery 
purposes  on  certain  conditions,"  reports  that  in  the  opinion  of  the 
committee  the  same  shall  not  be  printed  and  is  referred,  under 
rule  32. 

The  President  —  That  disposes  of  that  without  action. 

Mr.  Hamlin  —  Mr.  President,  yesterday  morning  the  resolution 
offered  by  the  gentleman  from  Rensselaer  (Mr.  Roche)  in  reference 
to  the  printing  of  the  reports,  and  the  delay  that  had  occurred,  and 
that  there  had  been  none  placed  on  the  files  of  the  members  since 
last  Tuesday,  was  referred  to  the  Committee  on  Printing,  and  I 
desire,  after  an  interview  with  the  printers,  to  say  that  their  defense 
to  the  matter  in  part  is,  that  members  of  this  Convention  go  to  the 
printing  office,  take  the  proofs  of  their  speeches,  which  they  have 
delivered  here,  in  order  to  read  and  correct  them,  and  there  is 
delay  in  returning  them  to  the  office.  If  this  be  true,  it  would  be 
desirable,  certainly,  that  some  suggestion  be  made  to  these  gentle- 
men which  would  be  forcible  and  effective,  that  the  proofs,  if  they 
take  them  from  the  office,  should  be  returned  immediately. 

The  President  —  Perhaps  Mr.  Hamlin  can  answer  the  question 
put  by  Mr.  Lyons  a  few  moments  ago,  whether  there  is  any  doubt 
about  the  5,000  copies  of  the  report  of  the  Judiciary  Committee  being 
printed. 

Mr.  Hamlin  —  I  suppose  that  those  have  been  ordered,  Mr.  Presi- 
dent, in  the  ordinary  course. 

Mr.  Hedges  —  Mr.  President,  I  am  directed  by  the  Committee 
on  Militia  to'  ask  the  Convention  to  extend  our  time  for  the  final 
report  until  Friday  next,  as  some  of  the  officers  of  the  National 
Guard  wish  to  appear,  and  they  have  not  yet  been  able  to  do  so. 
Out  of  courtesy  to  them  we  would  like  to  have  the  time  extended. 

The  President  put  the  question  on  extending  the  time  of  the 
committee,  and  it  was  determined  in  the  affirmative. 


August  18.]  CONSTITUTIONAL  CONVENTION.  791 

The  Secretary  called  general  orders  Nos.  2,  4  and  5,  which  were 
not  moved. 

The  Secretary  called  general  order  No.  20. 

Mr.  Tekulsky  —  I  move  we  go  into  Committee  of  the  Whole 
on  that  general  order. 

The  motion  prevailed,  and  the  Convention  resolved  itself  into 
Committee  of  the  Whole,  with  Mr.  Hawley  in  the  chair. 

The  Chairman  —  The  Convention  is  now  in  Committee  of  the 
Whole  on  general  order  No.  20  (overture,  introductory  No.  90, 
printed  No.  387).  Mr.  Tekulsky  has  the  floor. 

Mr.  Tekulsky  —  Mr.  Chairman,  this  measure  was  originally 
drafted  and  concocted  in  the  State  of  Ohio  by  the  ultra  Prohibition- 
ists who  had  come  to  a  conclusion  that  it  was  absolutely  necessary 
to  stop  the  sale  of  intoxicating  liquors  in  that  State.  The  Prohi- 
bitionists of  Ohio  got  this  measure  engrafted  into  the  Constitution, 
and  in  that  Constitution  it  reads  as  follows:  "  No  license  to  traffic 
in  intoxicating  liquors  shall  hereafter  be  granted  in  this  State/'  It 
passed,  became  a  law,  and  virtually,  as  Mr.  McKinstry  said  last 
evening,  it  was  free  rum  and  no  taxation  of  any  description.  But 
Mr.  McKinstry  errs  when  he  says  that  the  liquor  dealers  fought 
it,  were  against  the  idea  of  having  a  tax  put  upon  the  business. 
They  certainly  were  not,  because  as  soon  as  there  was  a  tax  upon 
the  business  in  the  State  of  Ohio,  the  liquor  dealers  there  were 
well  pleased  that  they  were  living  under  some  law  without  being 
molested  by  the  authorities  in  the  different  localities.  It  was  a  con- 
tinual wrangle,  although  the  Constitution  plainly  said  that  there 
should  be  no  licenses  granted  in  the  State.  After  the  tax  law  was 
passed  in  the  State  of  Ohio,  it  has  been  stated  that  instead  of 
increasing  the  number  of  places  where  intoxicating  liquors  were 
sold,  it  decreased  them;  that  there  were  16,000  places  in  the  State 
of  Ohio  prior  to  the  tax,  and  that  since  the  tax  has  been  put  upon 
the  traffic,  it  has  reduced  the  number  to  11,000.  I  cannot  account 
for  the  statement  made  by  my  friend,  Mr.  McKinstry,  last  evening. 
Mr.  McKinstry  explains  to  me  that  he  got  it  from  a  newspaper,  but 
I  must  state  here  that  it  was  a  grave  error.  On  the  records  of  the 
association  that  I  have  the  honor  of  representing,  we 'have  in  the 
State  of  Ohio  12,000  members,  and  if  we  have  12,000  members  there 
certainly  must  be  five  or  six  or  seven  thousand  that  are  not  in  the 
organization,  because  our  organization,  under  no  circumstances,  will 
take  in  any  person  who  is  not  a  man  of  good  moral  character,  not 
approved  of  by  the  board  of  excise,  but  approved  of  by  the  Liquor 
Dealers  Association,  which  makes  it  positive  that  the  man  must  be 


792  REVISED  RECORD.  [Saturday, 

a  man  of  good  moral  character  and  keeps  a  respectable  place.  The 
tax  has  increased  the  number  of  places  where  intoxicating  liquors 
are  sold  in  the  State  of  Ohio,  instead  of  decreasing  them.  This 
measure  is  vicious;  it  is  wrong.  It  reads  well;  in  practice  is  bad. 
It  will  certainly  induce  people  to  go  into  the  liquor  business;  it 
certainly  will  make  more  places  than  there  are  now,  and  the  moment 
you  start  in  to  say  that  you  will  apply  to  the  Legislature  to  pass  a 
law  to  restrict,  you  find  that  you  cannot  restrict  against  one  man 
and  not  another,  because  your  Constitution  says  that  all  are  on  an 
equal  footing;  and  how  can  you  go  to  the  Legislature  and  have 
the  article  changed  after  it  is  once  engrafted  in  your  Constitu- 
tion; how  can  you  provide  that  one  man  may  sell  liquor  at  such  and 
such  a  place,  while  another  man  may  not  sell  at  another  place? 
That,  certainly,  would  be  unconstitutional,  and  the  consequence 
would  be  that,  instead  of  having  in  the  State  of  New  York  35,000 
places  that  pay  taxes,  you  would  have  in  the  State  of  New  York 
75,000  places.  And,  as  to  saying  that  we  would  have  an  income 
coming  into  the  State  of  three  million  dollars,  why,  I  think  that 
to-day  the  traffic  pays  the  State  over  five  million  dollars,  and  the 
tax  in  itself  is  collected  regularly  and  it  goes  to  the  local  authorities, 
where  this  tax  is  now  collected  through  the  license  system.  The 
only  good  feature  that  I  can  see  in  this  measure  is  that  it  takes 
away  the  power  now  held  by  commissioners  of  excise.  That  is  one 
of  the  grandest  features  there  is  in  this  measure;  because  men 
engaged  in  the  liquor  business  are  subject  to  the  whims  of  the 
excise  boards  in  the  State  of  New  York,  and  also  their  paid  attorney 
or  some  hired  person,  and  those  who  differ  from  them,  whether 
on  matters  of  politics  or  otherwise,  do  so  to  their  injury.  And 
another  reason  why  it  is  a  good  thing  that  this  power  should  be 
taken  away  from  the  boards  of  excise;  those  boards  in  the  State 
of  New  York,  upon  the  application  of  a  person  for  a  license  to  sell 
intoxicating  liquors,  pass  upon  the  moral  character  of  that  person, 
and  the  law  requires  that  the  person  shall  be  "  approved  of  by  the 
board."  It  is  very  hard  on  those  in  the  liquor  business  that  have 
to  have  boards  of  excise  in  the  State  of  New  York  pass  upon  their 
moral  character,  when  the  commissioners  of  excise  themselves,  in 
numbers  of  instances,  have  no  character.  Mr.  Chairman,  I  know 
from  experience  that  in  the  country  towns,  men  who  have  no 
character  at  all,  just  for  the  sake  of  getting  twenty-six  dollars  a 
year,  run  for  the  office  of  commissioner  of  excise.  It  is  said  that 
the  traffic  should  be  taken  out  of  politics.  There  is  where  the 
trouble  is  —  the  political  positions  that  are  to  be  had  in  these  country 
towns.  They  will  pick  up  almost  anybody  —  it  is  either  license  or 


AugusfiS.]  CONSTITUTIONAL  CONVENTION.  793 

no  license  —  no  matter  whether  the  man  is  a  good  man,  a  man  of 
character,  a  man  of  standing,  or  not;  it  is  merely  a  question  as  to 
whether  he  will  sign  a  license  or  whether  he  will  approve  of  this  or 
that  man.  His  townsman,  who  makes  the  application,  is  a  man  of 
good  moral  character,  when  the.  commissioner  himself  is  not.  It 
has  also  been  stated  here  on  the  floor  that  the  excise  laws,  as  passed 
in  1892,  had  in  them  a  provision  giving  the  right  to  the  writ  of  cer- 
tiorari,  where  the  person  making  an  application  for  a  license  had 
been  arbitrarily  refused.  Now,  I  claim  that  Mr.  McKinstry  is 
wrong  in  saying  it  was  a  unanimous  decision  of  the  courts  that 
was  rendered  on  this  subject.  I  claim  that  that  is  not  so;  that  in  no 
case  have  the  courts  decided  that  the  writ  of  certiorari  was  not  avail- 
able to  the  applicant  in  the  city  or  village  or  town  where  licenses 
have  been  granted,  unless  he  was  a  man  of  bad  character.  The  rea- 
sons that  the  judges  have  decided  against  the  applicant  in  the  writ 
have  been  that  there  were  no  licenses  granted  in  the  town;  there- 
fore, there  was  no  arbitrary  action  taken  against  a  particular  per- 
son; but  where  a  license  has  been  granted  and  the  man  was  a  man 
of  good  moral  character  and  conducted  a  respectable  place,  or 
intended  so  to  do,  and  could  satisfy  the  authorities  to  that  effect, 
I  know  of  several  instances  in  which  the  courts  allowed  the  board 
of  excise  to  grant  the  license.  Some  of  the  good  features  in  this 
amendment  would  come  to  us  like  a  godsend  if  it  were  three  or  four 
years  earlier,  just  as  it  came  as  a  godsend  to  the  liquor  dealers  of 
Ohio.  The  liquor  dealers  of  Ohio  were  willing  to  accept  anything 
and  so  would  we  have  been  in  the  State  of  New  York  three  years 
ago;  but,  since  1892,  the  Legislature  of  the  State  of  New  York  has 
passed  an  excise  bill  which  is  fair;  while  not  entirely  just  it  is  fair, 
and  every  man  in  the  State  who  can  read  the  English  language  can 
understand  what  the  excise  laws  of  the  State  of  New  York  are,  and 
I  can  see  no  special  reason  why  this  matter  should  go  into  the  -Con- 
stitution, when  it  may  have  to  remain  there  for  twenty  years  and 
cannot  be  changed,  while  probably  in  certain  localities  changes 
ought  to  be  made.  It  has  also  been  said  here  that  an  amendment 
is  to  be  offered  to  this  measure  embodying  local  option.  Local 
option  is  a  farce  as  it  is  carried  on  in  the  State  of  New  York 
at  the  present  time.  Let  these  same  gentlemen,  who  advocate  local 
option,  which  virtually  means  home  rule  in  the  localities,  allowing 
the  people  to  decide  what  they  desire  in  their  own  localities, 
in  this  Convention  vote  to  give  the  cities  the  same  right  that  they 
want  for  their  small  villages.  They  tell  you, "  No;  we  in  the  country 
know  more  about  your  cities  than  you  do  yourselves.  We  want  to 
go  to  the  Legislature  to  pass  laws  to  govern  you  and  your  action." 


794  REVISED  RECORD.  [Saturday, 

That  is  the  position  taken  by  the  gentlemen  who  come  here  and 
advocate  local  option  in  the  country  towns.  It  is  no  surprise  to  me 
that  this  measure  happens  to  come  from  Cattaraugus.  I  know  of 
no  other  county  in  the  State,  outside  of  Chautauqua,  from  which  it 
could  ever  have  come  —  only  from  there.  Of  course  everbody  knows 
that  Chautauqua  and  Cattaraugus  are  two  counties  that  are  hot- 
beds of  woman  suffrage  and  of  the  Woman's  Temperance  Society, 
which  has  been  named  this  year  the  "  Woman's  Suffrage,"  but  it  was 
actually  the  Woman's  Temperance  Society  of  Cattaraugus  and 
Chautauqua  counties.  It  does  not  surprise  me  at  all,  because  every 
woman  in  those  two  counties  —  almost  every  woman  —  belongs  to 
these  societies.  They  belong  to  these  societies  and  drive  their  hus- 
bands all  to  drink.  (Laughter.)  I  will  give  you  an  instance  that  we 
had  here  in  the  Legislature  in  1892.  The  president  of  the  Woman's 
Christian  Temperance  Society  of  the  county  of  Cattaraugus  was 
here  in  these  rooms  at  the  time  the  excise  bill  came  up,  and  she  had 
a  husband  here  who  was  a  member  of  the  Legislature,  and  I  was 
compelled  to  send  in  two  bottles  of  whiskey  to  keep  him  in  the 
chamber  so  that  he  would  be  here  to  vote.  Xow  that  is  just  the 
condition  of  things.  The  men  there  are  driven' to  drink,  while  the 
women  are  all  preaching  to  them  not  to  touch  it.  Now  this  meas- 
ure in  itself  is  certainly  a  very  bad  measure.  Take  it  from  a  high 
moral  standpoint,  that  the  business  is  a  business  that  muM  be  super- 
vised and  restricted,  then  it  certainly  ought  to  be  left  to  the  Legisla- 
ture to  pass  laws  upon  these  subjects,  and  so  that  the  Constitution 
cannot  do  anything  with  that  matter,  so  that  we,  in  the  different 
localities  could  get  some  kind  of  a  remedy  here  whereby  each  could 
be  controlled  by  its  own  neighborhood,  which  knows  its  own  wants. 
I  will  agree  with  the  gentlemen  for  local  option  if  he  will  do  the 
same  thing  for  the  cities  of  the  State  of  New  York.  He  will  not  do 
that;  I  am  positive  he  will  not.  I  have  offered  an  amendment  to  the 
cities  bill  here  —  a  home  rule  measure  —  and  I  have  been  frankly 
told  by  the  chairman  of  the  Cities  Committee  that  if  I  can  get  a  cer- 
tain number  of  gentlemen  on  his  committee  that  will  sign  in  favor  of 
that  amendment,  he  will  bring  it  into  this  body  in  his  bill.  Well, 
now,  I  claim  that  that  was  unfair,  because  the  same  gentleman  will 
advocate  the  very  measure  that  I  do,  while  he  has  not  the  courage 
to  come  into  this  Convention  and  tell  the  people  what  his  opinion 
is  on  these  subjects,  but  he  will  hide  it.  And  another  thing,  this 
will  take  it  out  of  politics;  while  this  amendment  now  proposed  cer- 
tainly would  not  take  it  out  of  politics  in  any  way.  In  the  first 
place,  the  tax  would  be  put  on  so  that  it  would  drive  men  to  do 
certain  things  politically  or  otherwise  just  to  satisfy  the  assessors  or 


August  18.]  CONSTITUTIONAL  CONVENTION.  795 

the  tax  collectors  in  the  different  towns.  At  the  present  time  I  am 
perfectly  satisfied  with  the  situation.  I  think  now  that  the  question 
of  politics  has  nothing  at  all  to  do  with  the  liquor  business.  The 
party  which  has  fought  the  liquor  traffic  in  the  State  of  New  York 
has  found  the  folly  of  its  ways,  and  has  reconsidered  its  position, 
and  I  think,  to-day,  it  recognizes  the  liquor  traffic  as  an  honorable, 
upright  business  in  this  State  as  well  as  the  other  party  does.  I, 
therefore,  see  no  reason  why  we  should  have  this  measure  passed 
for  the  purpose  of  taking  the  business  out  of  politics,  when  I  believe, 
I  honestly  believe,  that  it  is  virtually  out  of  politics  at  the  present 
time,  and  the  only  thing  to  do  is,  if  possible,  to  agree  upon  some 
measure  whereby  the  Legislature  shall  pass  a  law  taking  away  the 
rights  of  the  boards  of  excise  in  towns,  which  would  be  a  blessing 
to  the  towns.  I  will  agree  with  Mr.  McKinstry  on  that  subject,  that 
it  would  be  a  good  thing  if  we  could  do  something  to  remedy  the 
evils  in  the  towns,  and  that  it  would  be  a  good  thing  if  we  could 
remedy  the  evils  in  connection  with  the  agents  of  excise  boards;  but 
you  must  go  to  the  Legislature  for  that  amendment;  you  have  to 
go  there,  that  is  the  place,  and,  therefore,  I  hope  this  measure  will 
not  prevail. 

Mr.  McKinstry  —  Mr.  Chairman,  I  would  like  to  offer  this 
amendment. 

The  Secretary  read  the  amendment  offered  by  Mr.  McKinstry,  as 
follows: 

"Add  these  words, '  The  Legislature  shall  also  preserve  by  law  the 
right  of  each  city  and  town,  by  majority  vote  of  the  electors  thereof, 
to  prohibit  traffic  in  intoxicating  liquors  within  the  limits  of  said  city 
or  town.' " 

Mr.  McKinstry  —  I  will  not  take  time  to  speak  at  any  length  in 
reply  to  Mr.  Tekulsky.  I  will  say  that  I  have  come  to  the  conclu- 
sion myself,  while  I  believe  the  principle  of  the  amendment  is  right, 
that  it  better  be  left  to  the  Legislature.  Perhaps  it  would  excite 
great  controversy  in  the  constitutional  election;  and,  therefore,  it 
better  be  left  out.  I  consumed  twenty  minutes  last  night,  and  Mr. 
Tekulsky  about  the  same  length  of  time  this  morning,  and  I  think 
the  Convention  will  hardly  complain  that  we  have  wasted  a  great 
deal  of  time.  Therefore,  I  make  this  motion,  that  the  committee  do 
now  rise  and  report  to  the  Convention,  recommending  that  the  pro- 
posed constitutional  amendment  under  consideration,  and  the 
amendment  offered  thereto,  be  recommitted  to  the  Committee  on 
Powers  and  Duties  of  the  Legislature.  As  I  understand  it,  Mr. 
Chairman,  if  that  amendment  is  recommitted,  it  will  be  removed 


796  REVISED  RECORD.  [Saturday, 

from  the  general  orders,  because  I  do  not  provide  that  it  shall 
retain  its  place  on  the  general  orders. 

The  Chairman  —  The  Chair  is  of  the  opinion  that  it  is  not  in  the 
power  of  the  Committee  of  the  Whole  to  entertain  such  a  motion. 

Mr.  McKinstry  —  To  recommend  to  the  Convention?  It  says, 
recommending  to  the  Convention  that  it  be  recommitted  to  the 
Committee  on  Powers  and  Duties  of  the  Legislature. 

Mr.  Tekulsky  —  And,  Mr.  Chairman,  I  desire  to  add  "  and  that 
the  committee  never  report  it  again." 

Mr.  Vedder  —  I  suppose  that  is  debatable ;  all  motions  except  to 
rise  and  report  progress  are  debatable? 

The  Chairman  —  Yes,  sir. 

Mr.  Vedder  —  Mr.  Chairman,  I  shall  not  enter  into  any  discussion 
with  regard  to  the  merits  of  this  proposition.  I  simply  will  say  a 
word  in  reply  to  the  remarks  of  Mr.  Tekulsky  in  relation  to  the 
county  of  Cattaraugus,  which  I  have  in  part,  the  honor  to  represent 
upon  this  floor.  I  shall  not,  in  the  language  of  another,  enter 
upon  any  encomium  upon  Cattaraugus.  There  she  stands,  as  one 
of  the  grand  counties  of  the  State,  grand  in  her  greatness,  and 
greater  still  in  her  modesty.  (Applause.)  One  notable  exception 
that  he  spoke  of  proves  the  rule.  It  is  a  Republican  county,  but  the 
gentleman  of  whom  he  spoke  happened  by  accident,  to  be  here  as  a 
Democrat.  The  blood,  Mr.  Chairman,  of  her  sons  and  of  their 
fathers  has  crimsoned  the  field  of  every  battle  where  American 
liberty  was  won  or  defended.  In  every  good  thing  which  goes 
toward  making  good  society,  which  makes  States  and  makes  strong 
the  pillars  of  State,  Cattaraugus  stands,  where  she  has  always  stood, 
and  will  stand  forever.  Without  indulging 

Mr.  Storm  —  Mr.  Chairman,  we  believe  all  the  gentleman  says, 
but  he  is  not  talking  to  the  motion.  Time  is  limited,  and  he  is  not 
talking  to  the  motion. 

Mr.  Vedder — Mr.  Chairman,  the  point  is  not  well  taken.  I 
might  indulge  in  the  language  of  the  great  Rufus  Choate,  "  in  glit- 
tering and  sounding  generalities,"  but  I  will  not,  and  will  close  as  I 
began,  with  my  voice  and  heart  strongly  in  favor  of  grand  old 
Cattaraugus,  and  I,  therefore,  second  the  motion  of  the  gentleman 
from  our  sister  county,  whose  people  are  of  equal  virtue,  that  this 
committee  do  now  rise  and  make  the  recommendation  suggested  by 
him. 

The  Secretary  again  read  the  motion  as  offered  by  Mr.  McKinstry. 


August  18.]  CONSTITUTIONAL  CONVENTION.  797 

Mr.  Tekulsky  —  Mr.  Chairman,  I  amended  that  by  moving  to 
insert:  "  That  the  committee  do  not  report  it  again." 

The  Chairman  put  the  motion  on  the  amendment  of  Mr.  Tekulsky, 
and  it  was  determined  in  the  negative. 

The  Chairman  then  put  the  question  on  the  motion  of  Mr. 
McKinstry,  and  it  was  determined  in  the  affirmative. 

President  Choate  resumed  the  chair. 

The  Chairman  —  Mr.  President,  the  Committee  of  the  Whole 
have  had  under  consideration  proposed  constitutional  amendment 
(printed  No.  387),  entitled  "  Proposed  constitutional  amendment  to 
amend  article  3  of  the  Constitution,  in  regard  to  taking  saloons  out 
of  politics,"  have  made  some  progress  therein  and  have  instructed 
the  chairman  to  report,  recommending  that  the  proposed  constitu- 
tional amendment  under  consideration,  and  an  amendment  offered 
thereto,  be  recommitted  to  the  Committee  on  Powers  and  Duties  of 
the  Legislature. 

The  President  put  the  question  on  agreeing  with  the  report  of  the 
committee,  and  it  was  determined  in  the  affirmative. 

The  President  —  The  Secretary  will  call  the  general  orders. 

The  Secretary  called  general  order  No.  8,  introduced  by  Mr. 
Lauterbach,  to  amend  article  2,  relative  to  suffrage. 

Mr.  Titus  —  Mr.  President,  I  move,  in  the  absence  of  Mr.  Lauter- 
bach, that  that  go  over. 

The  President  —  It  goes  over. 

The  Secretary  called  the  general  order  to  which  was  assigned  the 
proposed  amendment,  printed  No.  47,  introduced  by  Mr.  E.  R. 
Brown,  relating  to  public  officers  riding  on  passes. 

Mr.  E.  R.  Brown  —  Mr.  President,  I  hastened  to  return  to  the 
Convention,  but  it  required  my  riding  all  night,  and  I  would  like  to 
be  excused  from  presenting  this  subject  this  morning. 

The  Secretary  called  general  order  No.  28  (printed  No.  396),  intro- 
duced by  Mr.  McDonough,  relating  to  the  passage  of  laws. 

Mr.  McDonough  —  That  is  moved,  Mr.  President. 

The  President  put  the  question  on  going  into  the  Committee  of 
the  Whole,  on  general  order  No.  28,  and  it  was  determined  in  the 
affirmative. 

Mr.  E.  R.  Brown  in  the  chair. 

The  Chairman  —  The  house  is  in  Committee  of  the  Whole  on 
general  order  No.  28  (introductory  No.  286),  introduced  by  Mr. 
McDonough.  The  Secretary  will  read  the  proposed  amendment. 


798  REVISED  RECORD.  [Saturday, 

The  Secretary  read  the  amendment  relating  to  the  initiative  and 
referendum  in  passage  of  laws. 

Mr.  McDonough  was  recognized  by  the  Chair. 

Mr.  Hawley  —  Mr.  Chairman,  before  Mr.  McDonough  enters 
upon  the  explanation  of  his  proposed  amendment,  I  think  it  is  well 
enough  that  the  attention  of  the  committee  should  be  called  to  the 
fact  that  this  section  has  already  been  amended  and  is  now  upon  the 
order  of  third  reading.  The  amendment  which  has  been  thus  far 
progressed  by  the  Convention  is  to  that  part  of  the  section  which 
Mr.  McDonough  does  not  propose  to  amend,  and  the  action  of  the 
committee  ought  ultimately  to  take  such  form  as  that  the  amend- 
ment of  Mr.  McDonough  if  it  shall  meet  with  the  favor  of  the  com- 
mittee, should  be  to  the  section  which  is  now  on  the  order  of  third 
reading,  or  some  action  ought  to  be  taken  so  as  to  prevent  con- 
fusion in  that  regard. 

The  Chairman  —  What  is  the  general  order  to  which  you  have 
reference? 

Mr.  Hawley  —  General  order  No.  i,  and  it  is  No.  2  upon  the 
order  of  third  reading,  and  has  already  passed  the  Revision  Com- 
mittee and  been  reported,  and  is  now  ready  for  its  passage. 

Mr.  McDonough  —  Mr.  Chairman,  of  course,  if  the  committee 
should  adopt  this  amendment  it  would  have  to  correspond  with  the 
other,  and  we  could  make  those  changes.  The  Revision  Com- 
mittee, I  think,  will  have  that  power.  I  want  to  say,  Mr.  Chair- 
man, that  this  is  not  a  pet  scheme  of  mine,  and  I  do  not  want  any 
gentleman  to  vote  for  it  out  of  any  regard  he  may  have  for  me.  The 
great  labor  bodies  of  the  State  appeared  here  and  made  strong  argu- 
ments and  presented  petitions  containing  thousands  of  names  in 
favor  of  a  scheme  called  the  initiative  and  the  referendum.  A  great 
many  gentlemen  of  this  Convention  were  of  the  opinion,  I  think, 
those  that  I  talked  with  especially,  that  we  were  too  busy  a  people 
to  spend  much  of  our  time  with  these  complicated  systems;  but  it 
was  thought  by  many  that  there  ought  to  be  a  provision  for  referring 
certain  laws  to  a  vote  of  the  people,  if  it  was  thought  proper  by  the 
Legislature. 

There  is  no  power  now  in  the  Constitution  which  permits  the 
reference  to  the  people  of  a  proposed  measure  with  the  effect  that 
in  case  it  is  voted  for  by  a  majority  of  the  people  it  shall  become 
law,  except  one.  There  is  one  case  in  which  that  may  be  done 
under  our  Constitution,  and  only  one;  and  that  one  provision  is 
contained  in  article  7,  section  12  of  the  Constitution,  which  pro- 
vides for  the  creation  of  a  State  debt,  and  there  is  a  provision  that  a 


August  18.]  CONSTITUTIONAL  CONVENTION.  799 

debt  of  a  million  dollars  may  be  created;  but  except  the  debts  speci- 
fied in  the  tenth  and  eleventh  sections  of  this  article,  no  debt  shall 
be  hereafter  contracted  by  or  on  behalf  of  this  State,  unless  such 
debt  shall  be  authorized  by  law,  for  some  single  work  or  object,  to 
be  distinctly  specified  therein;  and  such  law  shall  impose  and  pro- 
vide for  the  collection  of  a  direct  annual  tax  to  pay,  and  sufficient 
to  pay,  the  interest  on  such  debt,  as  it  falls  due,  and  also  to  pay  and 
discharge  the  principal  of  such  debt  within  eighteen  years  of  the 
time  of  the  contracting  thereof.  No  such  law  shall  take  effect  until 
it  shall,  at  a  general  election,  have  been  submitted  to  the  people,  and 
have  received  a  majority  of  all  the  votes  cast  concerning  it  at 
such  election.  That  is  the  only  provision  in  the  Constitution  by 
which  the  Legislature  may  submit  a  proposition  to  the  people  that 
shall  not  become  a  law  until  ratified.  The  Legislature  may  pass 
laws  giving  powers  to  certain  boards  to  act,  provided  the  people  vote 
in  favor  of  the  act.  But  such  an  act  is  a  law  the  moment  it  is  signed 
by  the  Governor.  The  proposition  we  have  here  is,  that  a  proposi- 
tion —  I  will  not  call  it  a  law  —  an  act,  may  be  submitted  to  the 
people  to  be  voted  upon,  and  unless  a  majority  of  the  people  favor 
it,  it  is  not  a  law.  If  a  majority  favor  it,  then  it  becomes  a  law. 
Now,  there  are  certain  measures  that  ought  to  be  submitted  to  the 
people.  The  Legislature  may  be  in  doubt  as  to  how  the  people 
feel.  I  may  come  forward  and  say  that  the  people  of  my  county 
want  a  given  measure;  another  gentleman,  who  represents  the  same 
county,  may  say  that  the  people  are  opposed  to  it.  How  shall  we 
know?  Now,  this  enables  the  Legislature  —  it  is  not  mandatory,  it 
is  permissive ;  we  simply  permit  the  Legislature  to  frame  an  act,  put 
it  in  the  proper  language,  and  to  say  that  when  the  people  of  Albany 
county,  for  instance,  shall  vote  in  favor  of  the  measure,  it  shall  then 
be  a  law;  or  the  people  of  New  York  or  of  Brooklyn,  or  of  any  other 
county,  or  the  people  of  the  whole  State.  This  question  first  arose 
thirty  or  more  years  ago,  I  do  not  know  but  forty  years  ago,  under 
a  free  school  law.  A  free  school  law  was  passed  by  the  Legisla- 
ture and  submitted  to  the  people  to  be  voted  upon,  with  a  proviso 
that  it  should  not  become  a  law  unless  it  received  the  support  of  a 
majority  of  the  people  voting;  and  the  Court  of  Appeals  held  that 
that  could  not  be  done.  That  is  the  Barto  case,  in  the  8th  N.  Y. 
They  held  that  the  legislative  body  was  the  law-making  power,  and 
those  bodies  could  not  delegate  that  power  to  any  other  body;  and  it 
is  to  give  an  opportunity  to  the  Legislature,  if  it  sees  fit,  to  submit 
to  the  people  measures,  that  this  proposition  is  suggested.  We 
have  had  a  great  deal  of  talk  about  home  rule  here  and  many  of  us 
are  in  favor  of  home  rule.  I  am  in  favor  of  home  rule  for  Ireland; 


8oo  REVISED  RECORD.  [Saturday, 

but  for  the  cities  and  towns  of  this  State,  I  think  as  to  them,  New 
York  State  is  the  political  unit;  and  it  should  never  put  it  beyond 
its  power  to  take  action  in  a  given  case.  The  State  initiates  the 
action  on  this  matter;  it  refers  questions  to  the  people  and  ascer- 
tains the  voice  of  the  people;  and  if  the  people  are  opposed,  it  does 
not  become  a  law.  I  think  it  is  a  measure  that  is  entirely  proper. 
I  wish  to  say  further,  that  if  the  wishes  of  the  labor  people,  who 
came  here  and  asked  for  a  measure  much  broader  than  this,  are  to 
be  considered  by  this  Convention,  and  a  desire  exists  to  do  some- 
thing for  the  people,  the  labor  people  have  expressed  their  willing- 
ness to  the  gentlemen  who  came  here  in  favor  of  their  measure  to 
accept  this  and  be  satisfied.  They  say  it  is  not  much,  but  it  is  a  step 
in  the  right  direction ;  and  in  twenty,  thirty  or  forty  years  from  now 
it  may  lead  to  the  other. 

Mr.  Cochran  —  Mr.  Chairman,  may  I  ask  the  gentleman  a 
question? 

Mr.  McDonough  —  Yes,  sir. 

Mr.  Cochran  —  I  understand  that  the  bill  which  you  have  refer- 
ence to  as  having  been  recommended  by  the  labor  organizations  is 
the  bill  which  was  introduced  by  Mr.  Tucker  and  providing  for  the 
initative  and  the  referendum? 

Mr.  McDonough  —  Yes,  sir. 

Mr.  Cochran  —  Do  I  understand  that  the  committe  is  going  to 
report  that  adversely? 

Mr.  McDonough  —  I  do  not  know;  I  cannot  tell. 

Mr.  Cochran  —  Should  we  not  know  that  before  we  act  on  this? 

Mr.  Nicoll  —  What  number  is  it,  Mr.  Cochran? 

Mr.  Cochran  —  No.  114. 

Mr.  McDonough  —  Who  is  the  chairman  of  that  committee, 
Mr.  Cochran? 

Mr.  Cochran  —  Mr.  Vedder,  I  understand. 

Mr.  McDonough  —  They  have  failed  to  report  it.  Mr.  Rogers  is 
a  member  of  that  committee;  perhaps  he  could  inform  you. 

Mr.  Cochran  —  I  think  it  is  important  that  the  Convention  should 
know. 

Mr.  Rogers  —  The  committee  acting  on  this  bill  voted  to  report 
the  first  one.  The  other  they  voted  against  reporting.  If  it  was 
to  be  reported  at  all  it  would  be  an  adverse  report. 

Mr.  McDonough  —  Now,  this  is  all  that  is  left;  and  if  you  desire 
to  give  this  power  to  the  Legislature,  you  may  favor  this.  If  it  is 


August  18.]  CONSTITUTIONAL  CONVENTION.  801 

not  in  just  the  language  the  gentlemen  would  like  to  have,  I  have 
no  choice  about  it.  I  simply  present  it  as  I  think  it  is  my  duty  to 
do,  and  leave  it  to  you  to  discuss  and  consider. 

Mr.  Alvord  —  Mr.  Chairman,  I  think  that  the  best  way  to  settle 
this  is  to  abolish  the  Legislature  and  make  the  people  the  Legisla- 
ture of  the  State.  This  seems  to  be  simply  a  proposition  to  make  it 
an  appellate  court.  There  is  too  much  machinery  about  it,  it  seems 
to  me,  in  that  regard,  and  the  people  had  better  settle  all  the  laws 
of  the  State  to  begin  with.  They  are  now  contending  with  the  idea 
of  their  voting  as  often  as  they  are  called  upon  to  do,  but  this  will 
give  them  an  abundance  of  business.  They  will  be  all  the  year 
occupied  in  passing  upon  bills  that  the  Legislature  has  passed, 
because  there  will  hardly  be  a  case  in  which  there  will  not  be  a 
difference  of  opinion  and  a  doubt,  and  the  consequences  are  that 
the  parties  who  are  in  favor  of  the  proposition  will  desire,  if  possible, 
to  keep  it  before  the  people  until  they  shall  finally  make  it  a  law. 
Now,  my  idea  as  a  legislator,  and  as  a  member  of  this  Constitu- 
tional Convention  is,  that  if  I  am  in  doubt  in  regard  to  the  propriety 
of  a  measure  put  before  me  for  my  vote,  that  the  best  way  is  to  vote 
against  it  without  any  hesitation  whatever.  Therefore,  there  is  no 
reason  why  there  should  be  given  to  the  people  the  opportunity, 
because  legislators  shirk  their  duty,  to  vote  upon  the  question 
whether  or  no  a  measure  should  become  a  law.  I  hope,  therefore, 
sir,  that  a  crude  measure  like  this  will  not  obtain  the  votes  of  this 
Convention. 

Mr.  Dean  —  Mr.  Chairman,  it  seems  to  me  that  the  title  of  this 
measure  should  be  "  an  act  to  encourage  cowardice  on  the  part  of 
the  representatives  of  the  people."  That  will  be  the  logical  effect  of 
the  measure.  When  the  people  of  a  given  community,  in  their  wis- 
dom, have  chosen  members  of  the  Assembly  or  members  of  the 
State  Senate,  they  have  delegated  to  those  representatives  the  powers 
of  the  people.  Now,  if  you  bring  a  body  together,  made  up  upon 
that  plan,  bring  them  together  in  a  legislative  body,  then  permit 
them  to  shirk  all  their  responsibilities  by  referring  everything  back 
to  the  people  to  be  passed  upon,  you  have  completely  destroyed 
representative  government.  It  is  simply  an  effort  to  avoid  the 
responsibility  of  representatives,  and  is  entirely  vicious,  antagonis- 
tic to  every  proposition  of  a  republican  form  of  government  — 
indeed,  I  think  it  goes  so  far  as  that  it  would  call  upon  the  United 
States  courts  to  pass  upon  what  constitutes  a  republican  form 
of  government.  That  question,  I  believe,  has  never  been  passed 
upon,  but  this  certainly  would  bring  it  before  the  courts. 
51 


802  REVISED  RECORD.  [Saturday, 

Mr.  Hill  —  Mr.  Chairman,  this  proposed  amendment  appears  to 
contemplate  the  operation  of  a  modified  form  of  the  so-called 
principle  of  the  referendum,  and  as  has  been  said,  it  seems  to  be  at 
war  with  the  principle  of  representative  government.  The  principle 
of  the  referendum  has  been  adopted  with  some  degree  of  success 
by  municipalities  or  local  divisions  of  government  in  relation  to  their 
business  affairs,  but  no  State  of  the  Union  has  as  yet  adopted  such 
a  principle  in  relation  to  the  great  questions  of  State  sovereignty, 
and  it  is  questionable  as  to  whether  or  not  the  experience  of  foreign 
countries  is  such  as  to  warrant  the  State  of  Xew  York,  at  this  time 
in  attempting  to  apply  such  a  principle  in  reference  to  the  general 
laws  of  the  State.  The  operation  of  the  referendum  in  Switzerland 
has  not  been  wholly  successful.  Many  important  measures  sub- 
mitted by  the  federal  and  cantonal  councils  of  that  republic  for 
ratification,  have  been  rejected  by  the  people.  Legislative  bodies 
in  Switzerland  have  sometimes  appeared  to  dodge  the  responsibility 
incumbent  upon  them,  of  presenting  only  those  laws  which  were 
regarded  as  wise  and  in  the  interests  of  all  the  people,  and  instead 
thereof  have  submitted  many  ill-advised  propositions  that  have  been 
disapproved  by  their  constituencies.  It  has  been  said  that  even  in 
the  industrial  canton  of  Zurich,  "  The  people  have  rejected  cantonal 
laws  reducing  the  hours  of  work  in  factories,  protecting  women 
and  children  employed  in  them,  and  voted  against  the  federal  fac- 
tory law  and  also  against  the  law  giving  daughters  an  equal  inherit- 
ance with  sons  in  the  estates  of  their  parents.''  The  proposed 
amendment  now  before  us  leaves  it  optional  with  the  Legislature 
to  present  any  act  to  the  people  that  it  may  not  feel  disposed  to 
assume  the  responsibility  of,  and  thereby  compel  the  people  to  pass 
upon  its  merits.  The  people  are  not  ready  for  such  a  constitutional 
provision.  As  far  as  general  legislation  is  concerned,  we  are  pre- 
pared, as  delegates  in  this  Convention,  to  say  that  such  oppor- 
tunity for  avoiding  legislative  responsibility  is  unwarrantable. 
There  may  be.  local  measures,  however,  affecting  only  municipali- 
ties and  the  business  affairs  of  municipalities  which  very  properly 
may  be  intrusted  to  the  municipalities  themselves.  They  can  be 
intrusted  with  the  responsibility  of  acting  in  accordance  with  their 
own  interests  on  such  local  measures.  But  as  to  .the  adoption  of 
the  general  laws  of  the  State,  affecting  the  State  at  large,  the 
Legislature,  which  represents  the  people,  should  not  be  relieved 
from  its  responsibility  to  the  people.  If  such  a  policy  were  pur- 
sued, the  people  themselves  would  be  required  to  pass  upon  even- 
law  before  the  same  became  operative.  This  would  be  impracti- 
cable and  expensive.  If  this  principle  were  carried  out,  we  would 


August  18.]  'CONSTITUTIONAL  CONVENTION.  803 

have  here  a  pure  democracy,  and  such  a  system  of  government  is 
not  advisable  in  a  State  as  large  as  the  State  of  New  York.  We 
cannot  apply  in  this  State  the  principles  of  pure  democracy  with 
any  expectation  of  that  degree  of  success  which  was  experienced 
in  some  of  the  Grecian  States.  Ours  is  a  representative  system 
of  government,  and  as  such,  it  should  ever  be  preserved.  Any 
departure  therefrom  would  not  be  in  keeping  with  the  genius  of  our 
institutions.  But,  Mr.  Chairman,  if  it  were  possible  to  limit  the 
operations  of  the  proposed  amendment  to  the  business  affairs  of 
municipalities,  it  would  be  far  less  objectionable.  I  am  opposed  to 
the  amendment  in  its  present  form. 

Mr.  Cochran  —  Mr.  Chairman,  I  would  just  like  to  ask  for  infor- 
mation of  Mr.  McDonough,  if  the  authority  which  is  intended  to  be 
granted  by  this  proposed  amendment  does  not  now  exist  in  the 
Legislature,  and  if  it  does  not,  how  is  it  that  bills,  or  proposed  laws, 
have  been  submitted  to  the  people  for  their  approval? 

Mr.  McDonough  —  Mr.  Chairman,  if  I  may  be  permitted,  I  will 
answer  the  gentleman.  Section  i  of  article  3  of  the  Constitution 
provides :  "  The  legislative  power  of  this  State  shall  be  vested  in 
the  Senate  and  Assembly."  There  is  where  the  legislative  power 
is,  and  nowhere  else.  In  the  case  of  Barto  v.  Himrod  (8th  N.  Y.) 
the  court  decided,  in  1853,  that  an  act  which  established  free  schools 
throughout  the  State  was  unconstitutional  and  void,  for  the  reason 
that  the  fact  of  its  becoming  a  law  was  made  to  depend  upon  the 
result  of  a  popular  election.  Section  10  of  that  act  required  that  the 
electors  should  determine  by  Ballot,  at  the  annual  election  to  be 
held  in  November,  whether  that  act  should  or  should  not  be  a  law. 
The  legislative  power,  the  court  held,  is  vested  in  this  State,  by  the 
Constitution,  article  3,  section  i,  which  I  have  just  read  to  you,  in 
thevSenate  and  Assembly.  The  power  to  pass  general  statutes  exists 
exclusively  in  the  legislative  bodies.  In  one  instance  only  is  it  lim- 
ited or  qualified,  and  that  is  article  7,  section  12,  which  requires  that 
no  law  for  contracting  certain  debts  shall  take  effect  until  it  shall  be 
submitted  to  the  people.  In  the  case  of  Gloversville  v.  Howell 
(70  N.  Y.,  287),  the  principle  of  the  Barto  case  was  sustained,  but 
it  was  held  that  it  did  not  preclude  the  Legislature  from  providing 
for  local  option,  so  that  the  trustees  of  a  village  should  grant  licenses 
or  not,  depending  on  a  vote  of  the  electors  of  the  village.  In  the 
case  of  the  Gilbert  Elevated  Railway  Company  (70  N.  Y..  374)  the 
Barto  case  is  also  cited  and  approved.  It  was  held,  however,  that 
the  rapid  transit  act  was  not  subject  to  the  objection  that  it  dele- 
gated legislative  powers  to  the  commissioners,  as  the  manner  of 
exercising  a  franchise  by  a  street  railroad  is  not  an  essential  element 


804  REVISED  RECORD.  [Saturday, 

of  the  franchise,  and  the  Legislature  may  authorize  it  to  be  con- 
trolled by  the  people  or  officers  of  a  locality.  In  the  People  v.  Fire 
Association  (92  N.  Y.,  315),  which  is  a  recent  case,  the  Barto  case 
is  cited,  and  Judge  French  said  of  it:  "  What  was  there  denominated 
the  school  law,  came  from  the  hands  of  the  Legislature,  not  as  a 
law,  but  as  a  proposition.  Whether  it  should  be  a  law  or  not  was 
precisely  the  question  submitted  to  popular  vote.  The  Legislature 
proposed  the  law,  but  left  to  the  people  to  enact.  *  *  As  to 

the  school  law,  the  people  w^ere  made  the  Legislature,  and  left  to 
decide  whether  the  bill  proposed  should  or  should  not  become  a  law : 
but  nothing  in  that  decision  denied  to  the  Legislature  the  right  to 
pass  a  law  whose  operation  depended  upon,  or  would  be  affected  by, 
a  future  contingency.  It  was  not  denied  that  a  valid  statute  may  be 
passed  to  take  effect  on  the  happening  of  a  future  event,  certain  or 
uncertain."' 

This  distinction  is  pointed  out  in  Bank  of  Rome  v.  Village  of 
Rome  (18  N.  Y.,  39),  where  the  constitutionality  of  an  act  was  sus- 
tained, which  act  conferred  power  on  a  board  of  trustees  to  issue 
bonds,  but  not  until  the  approval  of  two-thirds  of  the  electors  was 
first  obtained.  The  distinction  taken  in  that  case  was  that  the  law 
took  effect  immediately  and  conferred  the  necessary  power,  but  did 
not  compel  the  village  to  act  until  the  taxpayers  consented.  That 
is  clearly  the  distinction.  The  law  was  complete,  although  its 
operation  depended,  upon  a  contingency  which  might  or  might  not 
happen,  that  is,  the  people  voting  to  issue  the  bonds  or  not. 

The  object  of  the  proposed  amendment  before  this  committee  is 
to  permit  the  Legislature  to  do  what  the  Barto  case  denied  them 
the  right  to  do,  namely,  to  submit  a  proposed  law  to  a  vote  of  the 
people,  the  same  to  become  a  law  if  ratified  by  a  vote  of  the  people. 
There  may  be  cases  where  such  a  power  would  be  desirable,  where 
an  expression  of  the  will  of  the  people  ought  to  be  obtained;  and 
hence  the  desire  to  incorporate  this  amendment  in  the  Constitution. 

Mr.  Marshall  —  Mr.  Chairman,  I  regard  this  proposed  amend- 
ment as  introducing  into  the  Constitution  of  this  State,  should  it  be 
adopted,  a  most  vicious  principle.  It  would  deal  the  death  blow 
to  representative  government  in  this  State.  It  would  allow  a  legisla- 
tive body  which  is  now  charged  with  high  duties,  with  the  obligation 
of  determining  questions  of  policy  and  questions  of  State,  which  are 
presented  to  it  for  consideration,  to  shirk  the  responsibility  which 
the  people  have  put  upon  it,  and  to  submit  to  possibly  a  very  small 
fraction  of  the  people  who  might  be  interested  in  the  passage  of  a 
particular  bill,  the  determination  as  to  whether  or  not  a  certain 
measure  should  or  should  not  become  a  law.  It  is  a  proposition 


August  18.]  CONSTITUTIONAL  CONVENTION.  805 

which  is  entirely  unsuited  to  a  State  or  country  like  ours.  It 
might,  perhaps,  be  entirely  proper  to  submit  a  measure  of  this  sort 
to  a  small  community,  a  town,  a  village,  even  a  small  city.  But 
when  we  apply  this  principle  to  general  legislation  affecting  a  com- 
munity like  the  State  of  New  York,  it  would  be  impossible  to 
know  what  the  consequences  might  be,  impossible  to  foretell  them. 
If  this  principle  should  be  applicable  to  a  State  it  could  be  made 
applicable  to  the  nation,  and  let  us  suppose,  for  an  instant,  that 
Congress  should  enact  a  tariff  law  and  then  submit  it  to  a  referen- 
dum, submit  it  to  a  vote  of  the  people  to  determine  whether  or  not  a 
proposed  law  should  become  an  actual  law  or  not  by  a  vote  of  the 
people,  it  would  be  impossible  ever  to  get  legislation  upon  a  sub- 
ject of  that  character.  My  idea  is,  that  a  principle  which  possibly 
might  be  applicable  to  a  community  like  the  old  Greek  republics, 
consisting  of  a  single  city,  or  of  a  very  limited  territory,  or  a  princi- 
ple which  might  be  applicable  to  a  town,  is  certainly  not  applicable 
to  a  State  containing  nearly  seven  million  people.  Nothing  can 
better  illustrate  the  folly  of  a  proposed  measure,  such  as  that  which 
is  now  before  us  for  consideration,  than  the  very  case  which  the 
gentleman  from  Albany  cited,  the  case  of  Barto  v.  Himrod,  in  the 
eighth  New  York,  and  which  he  seeks  to  have  overruled  by  this 
Convention  and  by  the  people  of  the  State  of  New  York  at  the 
polls.  That  was  a  case  in  which  the  question  came  before  the 
Legislature  as  to  the  enactment  of  a  law  relative  to  the  free-school 
system.  The  members  of  the  Legislature  were  afraid  of  the  con- 
sequences which  might  result  from  taking  definite  action  upon  the 
passage  or  the  non-passage  of  that  act,  and,  therefore,  they  sought 
to  shirk  their  responsibility  by  putting  into  the  act  a  section  which 
read :  "  The  electors  shall  determine  by  ballot,  at  the  annual  elec- 
tion to  be  held  in  November  next,  whether  this  act  shall  or  shall  not 
become  a  law;  "  practically  the  same  language  which  my  friend  now 
seeks  to  have  introduced  into  the  Constitution  of  this  State.  The 
Court  of  Appeals  held  that  under  our  system  of  government,  a 
representative  system  of  government,  it  was  the  duty  of  the  Legis- 
lature to  make  laws,  that  the  people  have  delegated  those  duties  to 
the  Legislature,  and  that  the  Legislature  could  not  absolve  itself 
from  the  performance  of  those  duties  which  had  been  imposed  by 
the  sovereign,  and  that  the  sovereign  itself,  the  people  themselves, 
could  not  revest  themselves,  in  this  method,  with  the  power  of  legis- 
lation. Now,  nothing  has  ever  been  said  upon  this  subject  by 
anybody,  by  any  publicist,  by  any  law  writer,  which  so  clearly 
points  out  the  danger  of  this  proposed  constitutional  amendment 
as  the  language  which  was  uttered  in  that  case  by  Chief  Judge 


8o6  REVISED  RECORD.  [Saturday, 

Ruggles  and  by  Judge  Willard.  Chief  Judge  Ruggles,  citing  from 
the  opinion  of  Mr.  Justice  Johnson,  in  the  case  of  Johnson  v.  Rich, 
in  9  Barb.,  686,  uses  this  significant  language:  "  I  regard  it  as  an 
unwise  and  unsound  policy,  calculated  to  lead  to  loose  and  improvi- 
dent legislation,  and  to  take  away  from  the  legislator  all  just  sense 
of  his  high  and  enduring  responsibility  to  his  constituents  and  to 
posterity,  by  shifting  that  responsibility  upon  others.  Experience 
has  also  shown  that  laws  passed  in  this  manner  are  seldom  perma- 
nent, but  are  changed  the  moment  the  instrument  under  which  they 
are  ratified  has  abated  or  reversed  its  current;  of  all  the  evils  which 
afflict  the  State,  that  of  unstable  and  capricious  legislation  is  among 
the  greatest." 

And  Judge  Willard  said:  "The  popular  feeling  is  expressed 
through  their  representatives;  and  the  latter  are  enlightened  and 
influenced  more  or  less  by  the  discussions  of  the  •  public  press. 
A  complicated  system  can  only  be  perfected  by  a  body  composed 
of  a  limited  number,  with  power  to  make  amendments  and  to  enjoy 
the  benefit  of  free  discussion  and  consultation.  This  can  never 
be  accomplished,  with  reference  to  such  a  system,  when  submitted 
to  a  vote  of  the  people.  They  must  take  the  system  proposed  or 
nothing.  They  can  adopt  no  amendments,  however  obvious  may 
be  their  necessity.  With  respect  to  the  single  case  where  the  Con- 
stitution requires  a  submission  of  the  law  to  the  people,  the  incon- 
venience is  less  felt,  because  only  a  single  proposition  is  submitted, 
with  respect  to  which  no  other  answer  can  be  given  than  yes  or  no. 
The  law  under  consideration  is  in  conflict  with  the  Constitution  in 
various  respects.  Instead  of  becoming  a  law  by  the  action  of  the 
organs  appointed  by  the  Constitution  for  that  purpose,  it  claims 
to  become  a  law  by  the  vote  of  the  electors;  and  it  claims  that  the 
popular  vote  may  make  it  void  and  restore  the  former  law.  All 
the  safeguards  which  the  Constitution  has  provided  are  broken 
down,  and  the  members  of  the  Legislature  are  allowed  to  evade  the 
responsibility  which  belong  to  their  office." 

And,  finally,  Judge  Willard  says :  "  If  this  mode  of  legislation  is 
permitted  and  becomes  general*  it  will  soon  bring  to  a  close  the 
whole  system  of  representative  government  which  has  been  so  justly 
our  pride.  The  Legislature  will  become  an  irresponsible  cabal, 
too  timid  to  assume  the  responsibility  of  law-givers,  and  with  just 
wisdom  enough  to  devise  subtle  schemes  of  imposture  to  mislead 
the  people.  All  the  checks  against  improvident  legislation  will  be 
swept  away,  and  the  character  of  the  Constitution  will  be  radically 
changed." 

Now,  I  cannot  add  anything  which  will  point  out  the  dangers  of 


August  18.]  CONSTITUTIONAL  CONVENTION.  807 

such  a  proposition  as  that  more  emphatically  than  has  been  done  in 
this  case,  which  has  been  adopted  in  almost  every  State  of  the 
Union  as  a  principle  not  to  be  departed  from,  one  which,  if  departed 
from,  would  endanger  our  whole  system  of  government.  Why  it  is 
proposed  to  leave  any  possible  measure  which  may  be  devised,  no 
matter  how  dangerous  it  may  be,  an  anarchistic  measure,  a  measure 
which  might  affect  the  religious  sentiment  of  an  entire  community, 
to  a  vote  of  the  people  at  the  polls  to  determine  whether  it  shall 
or  shall  not  become  a  law.  We  know  how  difficult  it  is  to  get  a 
vote  upon  a  constitutional  amendment.  Why  would  not  the  same 
difficulty  exist  with  respect  to  the  passage  or  the  non-passage  of 
a  law?  A  few  people  may  come  out,  interested  in  the  passage  of  a 
particular  measure,  and  by  the  concentration  of  their  voices  and 
votes  may  cast,  perhaps,  100,000  votes  in  favor  of  a  proposed  meas- 
ure. The  rest  of  the  people  may  be  ignorant  of  the  principle  which 
is  under  consideration;  they  may  be  careless  upon  the  subject;  they 
may  not  see  the  effect  of  such  legislation,  so  that  a  very  small  per- 
centage of  the  people  may  make  that  a  law  which  would  never 
become  a  law,  if  the  representatives  of  all  the  people  from  all  the 
sections  of  the  State,  here  in  a  legislative  body,  passed  upon  the 
propriety  or  the  impropriety  of  legislation.  Now,  the  fact  has 
been  adverted  to  in  the  remarks  of  my  friend  from  Erie  (Mr.  Hill) 
that  it  might  be  well  to  permit  a  constitutional  amendment  of  this 
sort  to  be  adopted,  which  would  refer  to  a  small  community  or  to 
a  city.  So  far  as  that  is  concerned,  I  claim  that  the  interpretation 
of  our  present  Constitution  has  been  such,  that  it  is  not  necessary 
to  put  such  a  clause  as  that  into  the  Constitution.  The  very  cases 
which  have  been  cited  by  my  friend  from  Albany  (Mr.  McDonough), 
particularly  the  case  of  the  Bank  of  Rome  v.  The  Village  of  Rome, 
show  that  it  is  competent  for  the  Legislature  to  pass  an  act,  the 
going  into  effect  of  which  may  be  made  dependent  upon  the  voting 
of  the  people.  As  is  said  in  that  case:  "An  act,  which,  by  its 
terms,  is  to  take  effect  immediately,  but  which  confers  upon  the 
authorities  of  a  municipality  certain  powers  not  to  be  exercised 
until  such  act  has  been  approved  by  vote  of  the  inhabitants,  is  con- 
stitutional. This  is  not  a  delegation  of  legislative  power,  within 
the  case  of  Barto  v.  Himrod.  The  submission,  by  the  Legislature, 
to  a  local  constituency  of  a  question  affecting  their  local  interests, 
is  to  be  distinguished  from  the  submission  of  a  question  affecting 
the  whole  State  to  the  entire  body  of  the  electors." 

Thus,  for  instance,  the  question  came  up  in  Syracuse  a  few  years 
ago  as  to  whether  or  not  the  city  should  acquire  water-works  of  its 
own,  and  should  bond  itself  for  the  purpose  of  acquiring  such 


8o8  REVISED  RECORD.  [Saturday, 

water-works.  The  Legislature  passed  an  act  enabling  the  city  to 
do  this,  and  the  act  went  into  effect  immediately.  It  was  proposed, 
however,  that  the  powers  conferred  should  not  be  exercised  until 
the  people  of  that  locality  had  voted  whether  or  not  they  desired  to 
acquire  a  pure  and  wholesome  supply  of  water  from  Skaneateles  lake. 
And  so,  in  the  city  of  New  York,  we  have  already  a  measure  which 
has  been  discussed  before  this  Convention  several  times  providing 
that  it  shall  be  left  to  the  vote  of  the  people  as  to  whether  or  not 
the  powers  which  are  conferred  by  that  act  shall  be  exercised. 

Mr.  McDonough —  May  I  ask  the  gentleman  a  question? 

Mr.  Marshall  —  Certainly. 

Mr.  McDonough  —  Can  you  pass  an  act  that  will  unite  Xew 
York  and  Brooklyn  as  a  city,  provided  the  people  vote  for  it  under 
this  Constitution? 

Mr.  Marshall  —  I  do  not  know  and  I  do  not  care.  So  far  as  that 
is  concerned,  the  people  may  go  through  the  harmless  amusement 
of  voting  upon  the  question  as  to  whether  or  not  they  wish  to  have  a 
consolidation  of  the  two  communities.  If  they  express  themselves 
in  favor  of  it,  if  the  law  now  passed  is  insufficient  and  inadequate 
to  that  end,  the  Legislature  will,  probably,  have  regard  for  the  voice 
of  the  people,  provided  it  appears  that  there  are  enough  votes  cast 
upon  that  proposition  to  express  the  popular  will;  but  I  do  not 
care  to  have  such  a  dangerous  provision  as  this  inserted  in  the 
Constitution  for  the  purpose  merely  of  accomplishing  the  union 
of  Brooklyn  and  New  York.  That  is  a  matter  of  very  little  signifi- 
cance; that  is  a  mere  matter  of  sentiment.  But  what  I  am  contend- 
ing against  here  is  the  injection  into  the  Constitution,  into  the 
organic  law  the  State,  of  a  principle,  of  a  rule,  which,  if  carried  out 
to  its  logical  conclusion,  will  destroy  representative  government  in 
the  State  of  New  York. 

Mr.  Hamlin  —  Mr.  Chairman,  I  would  like,  before  I  address  the 
Convention  with  the  very  few  words  I  have  to  say  on  this  proposi- 
tion, to  inquire  whether  this  proposed  amendment  is  here  by  the 
unanimous  report  of  the  committee? 

Mr.  Dean  —  I  would  like  to  answer  the  gentleman.  It  is  not. 
Mr.  Vedder  and  myself  dissented. 

Mr.  Maybee  —  Mr.  Chairman,  I  also  dissented  from  it. 

Mr.  Hamlin  —  Well,  Mr.  Chairman,  if  there  are  other  gentlemen 
who  wish  to  dissent  from  it,  so  that  it  will  be  a  minority  report,  I 
have  no  objection.  But,  at  any  rate,  I  believe  this  to  be  revolu- 
tionary. It  is  known  as  the  referendum,  which  is  designed  to  over- 
throw our  system  of  government.  It  is  a  principle  which  is 


August  18.]  CONSTITUTIONAL  CONVENTION.  809 

imported  from  abroad,  and  which  is  designed  to  overthrow  repre- 
sentative governments.  Now,  sir,  it  is  not  a  new  thing,  by  any 
means.  We  would  simply  go  back  to  the  system  of  3,000  years 
ago,  adopted  in  Greece  and  Athens.  It  built  up  Athens  and 
made  a  great  nation,  as  regards  art  and  literature,  but,  sir,  it 
destroyed  human  liberty  there.  The  referendum  was  also  in  vogue 
in  the  Italian  republic  and  it  destroyed  human  liberty  there.  Now, 
in  this  nineteenth  century,  we  are  asked  to  return  to  this  principle 
of  popular  government,  a  system  of  pure  democracy. 

Mr.  McDonough  —  If  this  be  revolutionary,  isn't  the  present 
system  in  the  Constitution,  providing  for  the  submission  of  amend- 
ments to  the  Constitution  to  the  people,  revolutionary? 

Mr.  Hamlin  —  An  amendment  to  the  Constitution  comes  once  in 
twenty  years,  and  that  involves,  or  ought  to  involve,  great  princi- 
ples affecting  the  interests  of  this  great  State.  But  here  is  a  propo- 
sition that  will  enable  every  Legislature  that  comes  to  this  city  to 
refer  at  any  time  any  proposition  which  comes  before  it  to  the 
popular  vote.  Now,  sir,  I  am  opposed  to  this  thing  in  principle, 
independent  of  any  question  of  law.  1  agree  with  my  friend  from 
Onondaga  that  it  destroys  the  whole  principle  of  our  government. 
Why,  sir,  after  this  system  had  been  abandoned  by  nations,  repre- 
sentative government  has  been  built  up  so  that  every  nation  in 
Europe  which  stands  in  the  forefronfe  of  civil  liberty  has  a  represen- 
tative government.  Now,  sir,  it -is .strange,  at  the  close  of  this 
nineteenth  century,  that  men  shoul^  come  to  this  Constitutional 
Convention  and  offer  to  revolutionize"  this  government.  Sir,  I  am 
opposed  to  it.  I  am  opposed  to  the  principle  of  it.  When  these 
gentlemen  get  up  and  talk,  time  after  time,  about  the  plain  people, 
I  say  when  the  plain  people  of  my  district  send  me  down  to  Albany 
as  a  representative,  I  come  here  to  represent  them  as  I  believe  to  be 
right,  and,  if  my  course  does  not  meet  their  approval  when  I  return 
to  them,  then  let  them  send  some  other  man  to  represent  them  in 
the  next  Legislature.  There  is  no  difficulty  about  this.  Everybody 
knows  that  in  those  ancient  republics  human  life  was  of  no  account. 
Why,  Athens,  the  greatest  of  these  republics  based  upon  this  prin- 
ciple banished  the  greater  portion  of  her  great  men  and  poisoned 
the  rest.  And  yet  gentlemen  will  come  into  this  Convention  and 
apparently  accept  this  principle  of  government.  Why,  gentlemen, 
it  seems  to  me  monstrous  that  there  could  be  found  anyone  who 
does  not  believe  in  the  representative  principle,  with  its  checks  and 
balances,  the  whole  foundation  of  which  is  to  secure  human  liberty. 
After  we  have  been  struggling  for  something  like  3,000  years  to 
obtain  human  liberty,  do  not  let  us  go  back  to  the  referendum. 


8io  REVISED  RECORD.  [Saturday, 

Mr.  Dean  —  Mr.  Chairman,  I  simply  desire  to  call  the  attention 
of  this  Convention  to  the  fact  that  the  effect  of  the  adoption  of  his 
provision  will  be  to  nullify  the  constitutional  limits  of  the  power 
of  the  Legislature.  All  that  would  be  necessary,  as  to  the  power 
of  the  Legislature,  with  respect  to  any  kind  of  bill,  would  be  to  pass 
that  law  and  submit  it  to  the  people,  when  they  would  nullify  the 
Constitution  itself. 

Mr.  Rolls  —  Mr.  Chairman,  I  understand  that  this  is  one  of  the 
measures  which  has  been  asked  for  from  this  Convention  by  the 
representatives  of  what  are  styled  labor  organizations.  I  think 
any  request  coming  from  any  large  number  of  our  citizens  ought 
to  be  most  respectfully  considered,  and  none  more  so  than  those 
that  come  from  that  source,  and  it  is  with  great  regret  that  I  am 
compelled  to  differ  most  seriously  with  this  petition  and  this  amend- 
ment. I  indorse  everything  that  my  learned  friend  (Mr.  Hamlin) 
has  said,  and  I  wish  to  say  right  here  that  there  is  no  class  in  this 
community  (if  it  be  right  to  speak  of  classes)  that  has  more  at  stake 
in  the  maintenance  of  a  representative  government  than  the  labor- 
ing class.  There  is  no  class  which  suffers  more  from  hasty  and  ill- 
advised  legislation.  There  is  no  class  which  feels  more  rapidly  the 
results  of  an  economic  or  political  mistake  in  legislation.  There 
is  no  class  which  recovers  so  slowly  and  with  such  difficulty  from 
such  mistakes.  Now,  sir,  Fielding  says  somewhere  that  there  is 
a  great  deal  of  human  nature  in  man,  and  one  part  of  it  is  that 
any  man  who  can  shirk  responsibility  in  a  difficult  position  finds  it 
most  convenient  to  do  so.  It  is  a  characteristic  which  the 
State  of  New  York,  above  all  others,  has  shown  that  the  tend- 
ency in  our  representatives,  and  our  public  men,  is  to  shirk 
responsibility ;  and  that  there  is  altogether  too  much  of  that  coward- 
ice which  is  the  most  baneful  in  its  effect  upon  the  State;  the 
cowardice  of  men  who  dare  not  stand  up  against  public  clamor. 
There  is  nothing  that  the  State  can  do,  I  think,  which  will  hurt  the 
State  more  than  to  help  that  downward  tendency.  There  is  nothing 
so  valuable  that  we  can  do  the  State  as  to  make  it  sure  and  certain 
that  every  representative  of  the  State  of  New  York  will  be  held  to 
a  strict  accountability  for  everything  that  he  does. 

Now,  sir,  this  idea  of  the  referendum  was  originally  introduced 
from  Switzerland,  the  great  and  glorious  republic  of  Europe.  But, 
Mr.  Chairman,  while  Switzerland  is  very  great  and  glorious,  it  is 
very  small  in  extent.  It  is  not  much  more  than  about  half  the 
size  of  the  State  of  New  York,  about  the  size  of  the  three  States  of 
Massachusetts,  Rhode  Island  and  Connecticut.  There  we  have  a 
small  extent  of  territory.  The  people,  while  divided  by  race  and 


August  18.]  CONSTITUTIONAL  CONVENTION.  Si  I 

language  into  three  communities,  are  still  within  its  boundaries. 
The  French,  German  and  Italian  are,  among  themselves,  most 
homogeneous.  Each  canton  of  that  country  is  also  homogeneous. 
In  such  a  country  it  is  perfectly  possible  to  have  the  referendum, 
especially  as  all  the  cantons  have  introduced  a  principle  which  I 
have  advocated  on  this  floor,  and  which  does  not  allow  any  citizen 
to  shirk  a  responsibility  on  a  popular  vote,  any  more  than  a  repre- 
sentative is  allowed  in  the  parliament  of  the  republic  to  shirk  respon- 
sibility. But,  sir,  I  ask  this  Convention  how,  in  all  reason,  can  the 
experience  of  such  a  peculiar  community  be  cited  as  a  precedent 
for  the  great  State  of  New  York,  with  seven  millions  of  people,  on 
a  territory,  which  is  very  much  greater  than  Switzerland,  and  with  a 
population  which  is  everything  else,  but  certainly  not  homogeneous? 
Under  such  circumstances  it  would  be  a  dangerous  experiment;  it 
would  be  an  absolute  danger  to  our  government  and  our  form  of 
government,  to  give  way  to  this  passing  fad  (as  I  must  surely  call 
it)  in  favor  of  this  referendum.  My  friend,  Mr.  Marshall,  has  well 
cited  the  legal  points.  The  fundamental  law  should  be  occasionally 
amended  by  the  people.  As  to  the  vote  of  the  people  on  an  amend- 
ment to  the  Constitution  and  a  vote  of  the  people  on  a  law,  there 
is  a  wide  divergence.  Mr.  Chairman,  I  sincerely  hope  this  amend- 
ment will  not  prevail. 

Mr.  Vedder  —  Mr.  Chairman,  I  simply  rise  to  make  an  explana- 
tion. The  proposition  before  us  is  to  amend  section  15  of  article  3. 
The  committee  amended  the  bill  in  this  regard  by  saying  that  it 
should  be  an  amendment  to  section  i  of  that  same  article,  if  at  all, 
and  it  was  so  amended.  Just  how  it  happened  to  come  here  in  this 
shape  I  do  not  understand,  unless  it  was  a  clerical  error  in  not  cor- 
recting it  in  that  regard.  I  wish  to  say,  however,  that  it  was 
reported  in  my  absence,  and  I  did  not  have  an  opportunity  to  look 
it  over,  as  I  usually  do  all  amendments  before  making  the  report. 
So  that  should  be  corrected  now  by  striking  out  "  section  15,"  and 
inserting  "section  I."  I  make  that  motion  so  as  to  correct  it  in 
that'  regard. 

Mr.  Cady  —  Mr.  Chairman,  I  dislike  to  occupy  the  time  of  the 
Convention,  even  briefly,  upon  this  proposition,  after  the  elaborate 
and  able  exposition  of  the  principal  views  connected  with  it,  which 
have  already  been  submitted  by  the  opponents  of  the  measure.  But 
I  regard  the  matter  involved  as  of  such  signal  importance,  so  novel, 
so  foreign  to  these  shores,  so  far-reaching  in  its  character,  that  I  feel 
it  my  duty  to  put  my  voice,  my  words  on  record  against  it,  as  well 
as  my  vote,  when  the  time  shall  come  to  cast  that  vote.  I  do  not 
think  that  any  such  provision  is  to  be  found  in  any  Constitution  of 


812  REVISED  RECORD.  [Saturday, 

any  State  of  the  United  States.  I  do  not  believe  that  it  has  ever 
been  deliberately  and  solemnly  submitted  to  any  other  Constitu- 
tional Convention  in  this  nation  for  its  consideration.  It  is  opposed 
to  the  whole  genius  of  Anglo-Saxon  and  Anglo-American  govern- 
ment. It  is  an  exotic.  It  is  foreign.  It  does  not  belong  here.  In 
our  sister  State  of  Massachusetts  the  judges  of  the  Supreme 
Court  have  made  a  deliverance  upon  the  subject  within  certain 
qualifications  and  limitations.  The  opinion  of  the  justices  of 
the  Supreme  Court  of  the  State  of  Massachusetts  was  required  by 
the  Legislature  of  that  State  upon  constitutional  questions  relating 
to  the  right  of  the  Legislature  to  submit  propositions  to  the  people 
for  their  vote  in  the  manner  proposed  by  this  amendment.  It  was 
required  of  the  justices  that  they  give  their  opinion  to  the  House 
of  Representatives  upon  the  following  important  questions  of  law: 

"  First.  Is  it  constitutional,  in  an  act  granting  to  women  the 
right  to  vote  in  town  and  city  elections,  to  provide  that  such  act 
shall  take  effect  throughout  the  commonwealth  upon  its  acceptance 
by  a  majority  vote  of  the  voters  of  the  whole  commonwealth? 

"  Second.  Is  it  constitutional  to  provide  such  an  act  that  it  shall 
take  effect  in  a  city  or  town  upon  its  acceptance  by  a  majority  vote 
of  the  voters  of  such  city  or  town? 

"  Third.  Is  it  constitutional,  in  an  act  granting  to  women  the 
right  to  vote  in  town  and  city  elections,  to  provide  that  such  an  act 
shall  take  effect  throughout  the  commonwealth  upon  its  acceptance 
by  a  majority  vote  of  the  voters  of  the  whole  commonwealth,  includ- 
ing women  specially  authorized  to  register  and  vote  on  this  question 
alone?" 

And  to  these  three  questions  a  majority  of  the  judges  rendered 
their  opinion  adversely,  giving  the  answer  in  the  negative,  and  in 
the  course  of  it  they  say,  at  page  587  of  160  Massachusetts  Reports: 
"  The  characteristic  feature  of  all  the  Constitutions  of  the  State  is 
that  they  establish  a  government  by  representatives  of  the  people, 
and  not  a  government  directly  by  the  people.  This  was  the  kind 
of  government  to  which  the  people  were  accustomed.  All  heredi- 
tary offices  have  been  abolished,  so  far  as  they  ever  existed  in  any 
of  the  colonies,  and  appointments  to  office  by  the  British  crown 
having  ceased  at  the  time  of  the  Revolution,  the  chief  executive 
officers  and  the  members  of  both  branches  of  the  Legislature,  where 
there  were  two  branches,  were  to  be  elected  by  the  people.  "  But 
there  is  nothing  in  any  part  of  the  Constitution  which  tends  to 
show  that  the  people  desired  that  any  law  should  ever  be  submitted 
to  them  for  approval  or  rejection." 


August  18.]  CONSTITUTIONAL  CONVENTION.  813 

There  is  nothing  in  the  constitutional  history  of  the  nation  or  in 
the  constitutional  history  of  any  State  of  the  nation  which  evinces 
a  similar  desire  on  the  part  of  the  people  of  the  State.  I  think 
that  in  this  very  solemn  matter  the  example  of  our  sister  States,  the 
history  of  our  own  nation,  the  solemn  deliverance  of  the  judges  of 
our  State  and  of  the  State  of  Massachusetts,  should  be  followed, 
rather  than  yield  to  any  temporary  desire  on  the  part  of  any  foreign 
element  to  put  any  such  proposition  as  is  embodied  in  this  proposed 
amendment  into  the  Constitution  of  our  State,  and  I  trust  that  it 
will  not  receive  the  approval  of  the  committee  or  the  approval  of  the 
Convention. 

Mr.  McDonough  —  Mr.  Chairman,  if  there  is  no  one  else  that 
wishes  to  speak,  I  would  like  to  say  a  word. 

Mr.  Mulqueen  —  Mr.  Chairman,  my  attention  has  been  called  to 
the  fact  that  we  have  not  a  quorum. 

Mr.  McDonough  —  I  hope  the  gentleman  will  not  raise  that 
point.  If  the  delegates  here  are  opposed  to  it,  I  am  satisfied  it 
won't  pass.  I  would  like  to  say  a  few  words  in  answer  to  the  criti- 
cisms that  have  been  made.  One  gentleman  characterizes  it  as  dan- 
gerous. Another  gentleman  has  declared  it  revolutionary. 
Another  gentleman  says  it  is  contrary  to  the  Constitution  of  Massa- 
chusetts. Now,  Mr.  Chairman,  I  deny  that  it  is  dangerous.  I  deny 
that  the  rule  of  the  people  is  dangerous  in  this  country.  It  has  been 
said  over  and  over  again,  and  so  often  that  it  is  a  household  word 
here,  that  ours  is  a  government  of  the  people,  and  for  the  people, 
and  by  the  people,  and  I  am  amazed  at  gentlemen  here  who  pretend 
to  be  afraid  of  the  people.  Not  only  afraid  of  the  people,  but  who 
say  the  legislators  are  cowards.  I  believe  that  the  legislators  have 
in  their  consciences  the  obligations  of  their  oaths  as  much  as  we 
have,  and  I  believe  they  will  do  their  duty  as  faithfully  as  we  will 
do  ours. 

Mr.  Marshall  —  Mr.  Chairman,  I  would  like  to  ask  the  gentle- 
man a  question.  At  the  last  session  of  the  Legislature,  some  800 
laws  were  passed.  Under  your  proposed  amendment  it  would  be 
competent  for  the  Legislature  to  refer  each  and  every  one  of  those 
800  laws  to  the  people  for  a  vote  upon  them.  Do  you  consider  that 
to  be  for  the  best  interests  of  the  people? 

Mr.  McDonough  —  Mr.  Chairman,  I  answer  that  it  is  competent, 
but  it  is  not  at  all  likely  that  the  Legislature  would  do  anything 
of  that  kind.  1  think  it  is  likely,  if  the  Legislature  had  the  power 
when  they  passed  the  law  uniting  the  city  of  New  York  and  Brook- 
lyn, that  they  would  have  submitted  it  and  had  the  people  say 


8i4  REVISED  RECORD.  [Saturday, 

whether  it  would  become  a  law  or  not.  When  the  Legislature  sub- 
mitted the  question  whether  the  people  wanted  contract  labor  or 
not,  they  voted  in  favor  of  abolishing  it  by  a  majority  of  130,000. 

Mr.  Dean  —  Mr.  Chairman,  I  would  like  to  ask  the  gentleman  a 
question.  Suppose  the  coming  Legislature  should  pass  a  law  that 
women  might  vote;  that  this  question  should  be  submitted  to  the 
people,  and  they  should  ratify  it.  We  have  in  the  present  Consti- 
tution that  only  males  can  vote.  I  would  like  to  have  the  gentle- 
man answer  what  situation  we  would  be  in  in  that  event? 

Mr.  McDonough  —  Mr.  Chairman,  I  would  like  to  answer  that 
if  we  should  give  such  power  no  gentleman  would  be  better 
pleased  than  the  gentleman  from  Chautauqua,  who  is  known  to  be 
such  a  champion  of  the  women. 

But  I  tell  you  what  they  can  do  now.  Two  Legislatures  can 
pass  a  proposed  amendment  and  then  submit  it  to  the  people  and 
have  it  put  in  the  Constitution,  after  it  has  been  favorably  voted  on. 
You  refer  to  the  people  this  fall  the  question  of  who  shall  be  Gov- 
ernor and  who  shall  be  Lieutenant-Governor.  You  refer  to  them 
the  question  of  who  shall  be  your  judges  and  you  refer  to  them 
most  important  acts.  If  you  are  afraid  of  the  people,  I  will  say 
that  I  am  not.  I  am  not  afraid  of  the  people  of  this  State.  One 
gentleman  says  that  he  is  afraid  because  few  people  may  vote  upon 
it;  that  it  may  attract  the  attention  of  but  a  few  people,  just  as  our 
constitutional  amendments  do;  that  only  the  people  directly  inter- 
ested in  the  amendment  will  pay  any  attention  to  it.  Then,  are  you 
going  to  submit  constitutional  amendments  for  a  few  people  to  vote 
upon?  We  will  vote  upon  two  constitutional  amendments  this  fall 
that  this  Convention  will  not  touch  at  all.  They  are  to  be  voted 
upon  by  acts  of  the  Legislature,  two  Legislatures  having  passed 
upon  them.  Was  the  body  which  put  in  here  a  constitutional  pro- 
vision that  you  shall  not  bond  your  State  without  the  approval  of 
the  people,  a  revolutionary  body?  Now,  I  have  great  respect  for 
Greece  and  Rome,  but  they  are  passed  away.  I  have  great  respect 
for  the  dead  judges,  more  respect  than  for  some  that  are  living. 
Judge  Willard  was  a  great  judge.  I  have  great  respect  for  him, 
but  Judge  Willard  so  construed  this  section  of  the  Constitution 

Mr.  Marshall  —  He  so  construed  the  policy. 

Mr.  McDonough  —  Why,  nobody  doubts  that  under  the  present 
Constitution  such  a  thing  as  referring  a  proposition  to  become  a 
law  cannot  be  done.  That  was  the  only  reason  that  I  introduced 
the  amendment,  because  I  knew  it  could  not  be  done.  I  want  to 
say  to  you  that  this  is  not  the  referendum  that  is  asked  for  by  the 


August  18.]  CONSTITUTIONAL  CONVENTION.  815 

laboring  people;  it  is  a  modification  of  theirs.  My  friend,  Holls, 
speaks  for  the  laboring  people,  but  always  votes  against  them.  But 
if  he  does  this,  he  is  not  right.  This  is  not  the  referendum  that  they 
asked  for.  It  was  the  initiative  that  they  asked  for,  that  all  legis- 
lation must  be  initiated  by  the  people  and  referred  to  them.  I  am 
not  as  familiar  with  Switzerland  as  my  friend,  Holls.  I  know  more 
about  Ireland.  I  believe  they  have  home  rule  in  Switzerland,  and 
they  should  have  home  rule  in  Ireland. 

Now,  Mr.  Chairman,  no  proposition  is  to  be  referred,  unless  it 
receives  a  majority  vote  of  the  Legislature.  Are  you  afraid  of  your 
Legislature?  The  matter  would  have  to  pass  the  Governor,  too. 
Are  you  afraid  of  him?  You  certainly  ought  not  to  be  afraid 
of  the  pleasant  old  gentleman  that  occupies  the  Governor's  chair 
at  the  present  time.  Now,  I  do  not  see  anything  dangerous  about 
this  proposed  amendment.  I  do  not  see  anything  revolutionary 
about  it.  As  I  said  in  the  beginning,  you  may  vote  for  it  or  you 
may  not  vote  for  it.  It  won't  hurt  me.  Unfortunately,  I  am  not 
a  laborer;  I  do  not  toil.  I  am  a  mere  lawyer.  I  believe  lawyers 
are  so  wicked  that  they  are  excluded  from  labor  organizations. 
I  tell  you,  gentlemen,  that  the  laboring  people  are  entitled  to  and 
should  receive  respectful  consideration  when  they  come  here. 
This  measure  is  not  anything  like  what  they  asked  for.  It  is  a 
very  simple  proposition  and  is  accepted  by  them. 

Now,  Mr.  Chairman,  I  think  we  had  better  postpone  the  vote  on 
it  this  afternoon  —  the  time  is  so  short.  However,  if  there  is  a 
quorum  present,  we  might  take  a  vote  upon  it,  but  I  doubt  very 
much  if  a  quorum  is  present. 

Mr.  Kerwin  —  Mr.  Chairman,  it  seems,  as  my  friend,  Mr.  McDon- 
ough,  has  stated,  that  any  popular  amendment  that  comes  before 
this  Convention,  or  any  measure  which  is  going  to  alleviate  the 
sufferings  of  the  masses  of  the  people  of  this  State,  is  termed  either 
an  anarchistic  or  a  Populist  proposition.  Mr.  Chairman,  this 
amendment  is  not  compulsory  referendum.  It  is  not  the  referen- 
dum that  our  people  asked  for,  but  it  is  a  step  in  the  right  direction. 
The  Greater  New  York  bill  that  passed  the  Legislature  last  winter, 
in  order  to  enable  the  people  to  vote  upon  the  proposition  whether 
they  want  it  or  not,  will  come  back  to  the  next  Legislature.  And, 
if  the  Legislature  is  of  a  different  political  complexion  than  that 
of  the  last  Legislature,  they  cannot  have  it. 

Mr.  Chairman,  if  this  amendment  was  in  the  present  Constitution, 
we  would  not  have  to  appear  here  with  a  proposition  to  abolish  the 
convict  labor  in  our  State  prisons.  The  people,  by  a  vote  of  a 
hundred  and  thirty  thousand  majority,  decided  against  contract 


REVISED  RECORD.  [Saturday, 

labor  in  prisons.  What  happened  then?  The  Legislature  ignored 
the  voice  of  the  people.  Mr.  Chairman,  I  hope  this  amendment  will 
prevail. 

Mr.  Hamlin  —  Mr.  Chairman,  I  move  that  the  committee  do  now 
arise  and  report  this  amendment,  rejecting  it  entirely. 

Mr.  McDonough  —  Mr.  President,  I  call  for  a  count  on  that,  to 
see  if  we  have  a  quorum  present. 

Mr.  Holls  —  Mr.  Chairman,  I  call  for  a  standing  vote  on  it,  and 
then  the  count  will  show  whether  a  quorum  is  present  or  not. 

Mr.  Hamlin  —  Mr.  Chairman,  if  there  is  any  doubt  about  a  quo- 
rum, I  move  the  committee  rise,  report  progress,  and  ask  leave  to 
sit  again. 

Mr.  McDonough  —  I  raise  the  point  that  no  quorum  is  present. 

Mr.  Hamlin  —  Mr.  Chairman,  the  committee  do  not  seem  to 
understand  what  the  question  is  before  them. 

Mr.  Moore  —  Mr.  Chairman,  is  the  motion  to  report  progress 
and  ask  leave  to  sit  again? 

The  Chairman  —  That  is  the  -motion.  Those  who  are  in  favor 
of  reporting  progress  and  asking  leave  to  sit  again  will  rise  and 
stand  until  they  are  counted. 

The  motion  was  lost  by  a  vote  of  37  to  44. 

Mr.  McDonough  —  There  is  not  a  quorum  present,  Mr.  Chair- 
man, and  I  raise  the  point. 

Mr.  Blake  —  All  may  have  not  voted,  Mr.  Chairman. 

Mr.  Kerwin  —  Mr.  Chairman,  the  vote  having  shown  that  there 
is  no  quorum  present,  I  move  the  .committee  rise  and  the  President 
take  the  chair. 

The  Chairman  —  The  roll  will  now  be  called  to  ascertain  if  there 
be  a  quorum  present. 

Mr.  McDonough  —  Mr.  Chairman,  I  raise  the  point  of  order  that 
if  there  is  no  quorum  present,  the  President  has  to  take  the  chair. 

The  Chairman  —  The  point  of  order  is  not  well  taken ;  the  Secre- 
tary will  count  the  members  present. 

The  Secretary  proceeded  to  count  the  members  present. 

The  Chairman  —  The  count  of  the  Secretary  reveals  the  fact  that 
there  is  more  than  a  quorum  present. 

Mr.  Holls  —  Mr.  Chairman,  I  now  renew  the  motion  made  by 
Mr.  Hamlin  that  the  committee  report  this  amendment  adversely. 


August  18.]  CONSTITUTIONAL  CONVENTION.  817 

Mr.  Mulqueen  —  Mr.  Chairman,  it  seems  to  me  that  on  a  matter 
like  this  where  the  laboring  men  of  the  State 

Mr.  Cady  —  Mr.  Chairman,  I  rise  to  a  point  of  order.  There  is 
no  question  before  the  House  for  discussion. 

The  Chairman  —  I  think  the  point  of  order  not  well  taken,  the 
motion  to  report  adversely  being  debatable. 

Mr.  Mulqueen  —  Mr.  Chairman,  it  is  with  some  hesitation  that  I 
rise  to  debate  this  question  to-day,  after  listening  to  the  able 
addresses  that  have  been  made  by  Mr.  Hamlin,  Mr.  Marshall, 
Mr.  Rolls  and  Mr.  Cady;  but  it  is  a  serious  matter  to  tell  us  that  a 
measure  proposed  and  advocated  by  every  labor  organization  in 
the  city  of  New  York  is  revolutionary.  It  was  amusing  to  me 
to  hear  Mr.  Holls  state  that  the  laboring  organizations  should  be 
protected  from  ill-advised  legislation,  and  yet  that  is  all  they  ask 
for  now.  They  want  to  have  the  right  on  certain  measures  passed 
by  the  Senate  and  Assembly  to  pass  upon  those  measures.  Now, 
sir,  the  laboring  men  of  the  State  have  asked  for  more  than  what  the 
committee  have  reported.  They  want  the  initiative,  as  well  as  the 
veto  power.  But,  sir,  the  committee  reported  against  that  and  all 
we  have  here  to-day 

The  President  resumed  the  chair. 

The  President  —  Mr.  Mulqueen  will  complete  his  address  at  three 
o'clock,  to  which  time  this  Convention  stands  in  recess. 


AFTERNOON   SESSION. 
Saturday  Afternoon,  August   18,   1894. 

President  Choate  called  the  Convention  to  order  at  three  o'clock. 

Mr.  Hamlin  —  Mr.  President,  I  would  like  to  move,  and  do  move, 
that  there  be  printed  4,000  additional  copies  of  the  amendment  of 
the  Judicary  Committee.  It  seems  that  the  former  resolu- 
tion provided  only  for  the  report  accompanying  the  amend- 
ment and  not  for  the  amendment  itself.  They  being  printed  separ- 
ately, it  now  appears  that  there  are  only  5,000  copies  of  the  report 
being  printed  and  not  of  the  amendment. 

The  President  —  Will  you  send  that  up  in  writing,  Mr.  Hamlin? 
Is  it  4,000  copies  of  the  report  or  of  the  amendment? 

Mr.  Hamlin  —  Of  the  amendment. 

The  President  —  The  gentlemen  hear  the  motion  of  Mr.  Hamlin 
that  4,000  copies  of  the  judiciary  article  be  printed. 
52 


8l8  REVISED  RECORD.  [Saturday, 

Mr.  Cochran  —  Mr.  President,  I  make  the  point  of  order  that 
there  is  no  quorum  present. 

The  President  —  I  trust  Mr.  Cochran  will  withdraw  the  motion. 

Mr.  Cochran  —  I  withdraw  it,  sir,  for  Mr.  Hamlin's  motion  only, 
and  at  his  request. 

The  President  put  the  question  on  the  motion  of  Mr.  Hamlin,  to 
print  4,000  extra  copies  of  the  judiciary  article,  as  proposed  by  the 
Judiciary  Committee,  and  it  was  determined  in  the  affirmative. 

Mr.  Gilleran  —  Mr.  President,  Mr.  McClure  has  requested  me  to 
ask  that  the  Convention  excuse  him  for  to-day,  because  of  illness 
in  his  family. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  McClure,  as  requested,  and  it  was  determined  in  the  affirmative. 

Mr.  Barrow  —  Mr.  President,  I  ask  to  be  excused  for  Monday  on 
account  of  illness  in  my  family. 

The  President  put  the  question  on  excusing  Mr.  Barrow,  as 
requested,  and  it  was  determined  in  the  affirmative. 

Mr.  Root  —  Mr.  President,  a  report  from  the  Committee  on 
Rules. 

Mr.  Cochran  —  Mr.  President,  I  renew  my  point  of  order  that  a 
a  quorum  is  not  present. 

Mr.  Root  —  Mr.  President,  I  think  I  have  the  floor. 
The  President  —  Mr.  Root  has  the  floor. 

Mr.  Root  —  Upon  the  resolution  to  amend  rule  29,  the  Com- 
mittee on  Rules  reports  in  favor  of  striking  out  the  last  sentence  of 
the  rule  which  reads  "  if  leave  be  refused,  the  effect  is  to  bring  the 
subject  up  immediately  before  the  Convention."  The  effect  will 
be  simply  to  leave  the  matter  to  ordinary  parliamentary  rules,  so 
that  the  question  will  proceed  as  it  does  in  ordinary  legislative 
bodies.  We  find  that  the  difficulty  which  has  arisen  here  arises 
solely  from  the  fact  that  this  last  sentence  of  the  rule  is  an  interfer- 
ence with  ordinary  parliamentary  procedure. 

Vv'e  also  report  to  amend  rule  7  by  inserting  the  words,  after  the 
word  "  request,"  in  the  fifth  line,  "  or  any  member  may  explain 
his  vote  for  not  exceeding  three  minutes."  That  is  simply  to  do 
away  with  the  fiction  of  asking  to  be  excused  from  voting  and  going 
through  all  that  form.  So  that  any  member  who  wishes  to  be 
excused  may  ask  to  be  excused,  and  any  member  who  wishes  to 
explain  his  vote,  may  explain  it,  in  either  case  taking  three  minutes. 
I  will  not  ask  for  a  consideration  of  these  rules  to-day,  but  will 


August  18.]  CONSTITUTIONAL  CONVENTION.  819 

bring  them  up,  with  the  consent  of  the  Convention,  on  Monday 
morning. 

Mr.  Marks  —  Mr.  President,  may  I  ask  the  gentleman  a  ques- 
tion? What  will  be  the  effect  and  what  will  be  the  parliamentary 
law,  if  we  strike  out  the  last  section  of  rule  7?  How  will  that 
affect  it? 

Mr.  Root  —  It  will  have  this  effect,  that  if  the  Committee  of  the 
Whole  has  reported  progress  and  asked  leave  to  sit  again,  the  Con- 
vention may  either  refuse  the  request  without  any  modification, 
refuse  it  simply,  and  that  kills  the  bill,  or  the  Convention  may  refuse 
it  and  order  the  amendment  to  a  third  reading;  or  the  Convention 
may  refuse  it  and  recommit  the  amendment  to  a  committee;  or  the 
Convention  may  grant  it,  which  leaves  it  in  the  Committee  of  the 
Whole.  So  that  each  of  those  four  alternatives  remains  open  for 
the  Convention  —  to  kill  it  by  refusal;  to  grant  it;  to  refuse  and 
order  to  a  third  reading,  which  is  an  adoption,  just  as  if  the  Com- 
mittee of  the  Whole  had  recommended  the  adoption  and  the  report 
of  the  committee  had  been  agreed  to;  or  to  refuse  and  recommit 
to  a  committee.  That  covers  the  entire  range  of  the  procedure 
possible  upon  such  a  report,  and  puts  each  of  the  four  alternatives 
by  itself,  so  that  the  Convention  may  determine  what  course  it 
wishes  to  follow. 

Mr.  Barhite  —  May  I  ask  the  acting  chairman  of  the  Committee 
on  Rules  a  question?  I  would  like  to  ask  him  if  the  proposed 
amendment  will  be  of  any  assistance  when  we  have  the  state  of 
affairs  which  we  did  this  morning,  where  a  committee  has  recom- 
mended the  passage  of  a  measure,  and  it  has  not  been  agreed  to  by 
the  Convention?  That  was  where  the  difficulty  arose  over  the  rul- 
ing this  morning.  I  would  like  to  ask  how  the  striking  out  of  the 
last  sentence  of  rule  29  will  help  us  out  in  such  a  state  of  affairs  as 
that? 

Mr.  Root — Mr.  President,  I  will  answer  the  gentleman's  ques- 
tion by  saying  that  the  change  that  we  now  report  is  not  designed 
to  apply  to  that  case.  It  merely  relates  to  the  rule  which  treats 
of  the  Committee  of  the  Whole  reporting  progress  and  asking  leave 
to  sit  again.  Upon  the  other  subject  the  committee  does  not  yet 
report.  We  thought  it  advisable  not  to  attempt  to  report  upon  that 
other  subject,  for  the  reason  that  three  members  of  the  committee 
were  absent  from  the  Convention  to-day,  and  those  three  were  all 
members  of  the  committee  who  represent  what  is  called  the  minority 
in  this  House. 


820  REVISED  RECORD.  [Saturday, 

Mr.  Blake  —  Air.  President,  1  would  like  to  have  the  report  read 
in  its  entirety  so  that  we  may  see  what  changes  are  proposed. 

Mr.  Cochran  —  We  are  killing  time  very  well,  Mr.  President, 
without  a  quorum,  I'  think. 

The  President  —  Where  any  action  is  taken  by  the  Convention, 
Mr.  Cochran's  point  will  be  in  force. 

Mr.  Root  —  In  answer  to  Mr.  Blake's  request,  I  will  repeat  that 
the  first  amendment  proposed  is  to  strike  out  the  last  sentence  of 
rule  29.  The  second  amendment  proposed  to  insert  in  rule  7,  after 
the  word  "  request,"  in  line  five,  the  words  "  or  any  member  may 
explain  his  vote  for  not  exceeding  three  minutes." 

Mr.  Blake  —  Those  are  the  only  changes? 

Mr.  Root  —  That  is  all. 

Mr.  Doty  —  Mr.  President,  Mr.  Davies  has  gone  home  ill,  and 
asks  me  to  request  that  he  be  excused  for  the  rest  of  the  afternoon 
and  for  Monday. 

The  President  put  the  question  on  excusing  Mr.  Davies  from 
this  afternoon's  session,  and  it  was  determined  in  the  affirmative. 

The  President  then  put  the  question  on  excusing  Mr.  Davies  on 
Monday,  and  it  was  determined  in  the  negative. 

Mr.  Emmet  —  Mr.  President,  on  behalf  of  Mr.  Gibney,  I  ask  that 
he  be  excused. 

The  President  then  put  the  question  on  granting  leave  of  absence 
to  Mr.  Gibney,  and  it  was  determined  in  the  affirmative. 

Mr.  Titus  —  Mr.  President,  Mr.  Ohmeis  left  for  home  this  after- 
noon quite  ill,  and  I  ask  that  he  be  excused. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Ohmeis,  and  it  was  determined  in  the  affirmative. 

Mr.  Powell  —  Mr.  President,  I,  unfortunately,  find  myself  in  a 
position  where  I  am  compelled  by  matters  which  I  have  tried  to  the 
utmost  of  my  ability  to  adjourn  and  to  have  set  aside,  to  ask  to  be 
excused  on  Monday.  I  have  stayed  here  to-day  in  the  face  of  great 
inconvenience,  because  I  was  afraid  we  might  not  be  able  to  get  a 
quorum. 

The  President  put  the  question  on  excusing  Mr.  Powell,  and  it 
was  determined  in  the  affirmative. 

The  President  —  Does  Mr.  Cochran  now  make  the  point  that 
there  is  no  quorum? 

Mr.  Cochran  —  Mr.  President,  I  do  not  want  to  have  this  Conven- 
tion misunderstand  my  motives.  I  believe  that  when  this  rule  to 


August  18.]  CONSTITUTIONAL  CONVENTION.  821 

hold  sessions  on  Saturday  afternoon  was  adopted,  it  was  intended  to 
apply  uniformly  to  all.  I  believe  that  when  this  rule  was  adopted 
there  were  very  many  members  voted  for  it  that  had  no  idea 
of  coming  here  on  Saturday.  I  think  it  is  unfair  to  the  members 
of  this  Convention  who  have  stayed  here  and  attended  conscien- 
tiously to  their  duties,  that  the  members  who  voted  for  this  Saturday 
session  should  stay  away.  I  think  it  is  my  duty,  as  a  delegate,  to 
insist  that  there  is  no  quorum,  and,  if  there  are  members  of  this 
body  who  are  not  here,  but  are  attending  to  other  business,  I  think 
they  should  be  brought  up  here. 

The  President  —  The  Chair  thinks  there  is  a  quorum.  However, 
the  Secretary  will  call  the  roll  to  ascertain  if  there  is  a  quorum. 

Mr.  Marshall  —  I  call  for  a  rising  vote  instead  of  a  roll-call. 

Mr.  Kerwin  —  Mr.  President,  I  object  to  any  rising  vote.  For 
two  days  in  succession  we  have  had  ninety-two  only  present,  barely 
a  quorum.  I  call  for  the  ayes  and  noes. 

Mr.  E.  R.  Brown  —  Mr.  President,  I  call  the  gentleman  to  order, 
as  not  having  been  recognized  by  the  Chair. 

Mr.  E.  A.  Brown  —  Mr.  President,  I  raise  the  point  of  order  that 
nothing  is  in  order  after  a  roll-call  was  been  ordered,  and  no  argu- 
ment or  objection  can  be  made. 

Mr.  Kerwin  —  Mr.  President,  I  ask  that  the  rule  in  force,  when 
there  is  not  a  quorum  present  that  the  ayes  and  noes  be  called  to 
ascertain  the  same,  be  enforced.  I  ask  if  the  rule  does  not  require 
a  roll-call  when  a  quorum  is  not  present? 

The  President  —  Will  Mr.  Kerwin  refer  to  that  rule? 

Mr.  Cochran  —  Rule  62. 

Mr.  Titus  —  Rule  63. 

Mr.  Kerwin  —  I  ask  that  question  for  information. 

The  President  —  The  Chair  is  of  the  opinion  that  there  is  no 
occasion  at  present  for  a  call  of  the  House  under  rule  62  or  63. 

Mr.  Kerwin  —  That  does  not  answer  the  question.  I  raise  the 
question  of  no  quorum.  The  rules  say  that  when  that  question  is 
raised  the  roll  shall  be  called. 

The  President  —  Let  Mr.  Kerwin  point  that  out  in  the  rules.  The 
gentlemen  will  please  rise  and  stand  until  they  are  counted,  in  order 
to  ascertain  if  a  quorum  is  present. 

The  Secretary  then  proceeded  to  count  the  members  present. 
The  President  —  The  gentlemen  will  be  seated.     There  is 


822  REVISED  RECORD.  [Saturday, 

Mr.  Kerwin  —  Mr.  President,  I  move  that  for  a  want  of  a  quorum 
we  adjourn. 

Mr.  Cochran  —  I  second  the  motion. 

Mr.  Kerwin  —  I  call  for  my  motion,  Mr.  President,  as  it  is  regu- 
larly seconded. 

The  President  put  the  question  on  the  motion  of  Mr.  Kerwin  that 
the  Convention  do  now  adjourn,  and  it  was  determined  in  the 
negative. 

Mr.  Kerwin  —  Mr.  President,  I  now  move  a  call  of  the  House. 

Mr.  Cochran  —  I  now  move  a  call  of  the  House. 

Mr.  E.  R.  Brown  —  Mr.  President,  is  it  impossible  to  enforce  that 
part  of  our  rule  which  provides  that  the  gentlemen  shall  not  make 
motions  until  they  have  addressed  and  been  recognized  by  the 
Chair? 

The  President  —  Rule  61  provides  that  "  in  all  cases  of  the 
absence  of  members  during  its  sessions,  the  members  present  may 
take  such  measures  as  they  shall  deem  necessary  to  secure  the 
presence  of  absentees." 

Mr.  Cochran  —  That  is  only  necessary  when  a  quorum  is  present, 
Mr.  President,  is  it  not?     I  suggest  that. 
Mr.  Blake  —  Mr.  President 

Mr.  Hill  —  I  understand  the  rule,  as  read  by  the  President,  leaves 
this  matter  entirely  with  the  Convention  as  to  what  action  it  shall 
take. 

The  President  —  With  the  House. 

Mr.  Hill  —  Now,  I  think  if  the  gentleman  from  Albany  will  be 
patient  for  a  moment  it  is  very  likely  that  there  will  be  a  quorum 
present  this  afternoon.  There  are  important  matters  before  this 
Convention,  which,  it  seems  to  me,  can  be  disposed  of  this  after- 
noon. That  there  should  be  at  present  a  lack  of  a  quorum  does  not 
seem  at  all  strange.  We  were  in  session  here  till  one  o'clock  this 
afternoon,  and  it  is  now  quarter  past  three.  I  think  if  the  gentle- 
man, in  view  of  the  urgency  of  the  business  will  yield  his  point,  it 
will  be  in  the  interest  of  us  all.  The  matter  under  consideration 
can  be  discussed  and  disposed  of  to-day. 

The  President  —  No  action  is  necessary.  The  House  is  in  Com- 
mittee of  the  Whole,  and  Mr.  Brown  will  take  the  chair. 

Mr.  Cochran  —  Mr.  President,  I  raise  the  point  of  order  that 
there  is  not  a  quorum.  I  am  content  to  remain  here  until  five 
o'clock  to  raise  a  quorum,  but  I  do  not  think  this  Convention  can 


August  18.]  CONSTITUTIONAL  CONVENTION.  823 

do  it.  We  barely  had  a  quorum  this  morning,  and  I  know,  to  my 
own  knowledge,  of  eleven  members  who  have  left  the  city  this 
afternoon. 

Mr.  McDonough  —  Mr.  President,  I  do  not  think  it  proper  for 
forty-six  members  of  this  Convention  to  beat  an  amendment  or 
order  it  to  a  third  reading. 

The  President  —  No  one  has  suggested  that. 

Mr.  McDonough  —  Forty-six  members  of  this  Convention  this 
afternoon  can  smother  this. 

The  President  —  No  they  cannot.  There  cannot  be  a  vote  taken 
without  a  majority,  and  I  know  of  no  rule  that  prevents  the  Com- 
mittee of  the  Whole  sitting  as  long  as  they  please. 

Mr.  McDonough  —  Just  a  moment,  Mr.  President,  I  misunder- 
stand. I  know  of  no  rule  by  which  forty-six  members  can  vote 
upon  a  constitutional  amendment. 

Mr.  E.  R.  Brown  took  the  chair. 

Mr.  Blake  —  I  desire  first  to  inform  the  Chair  and  the  committee 
that  Mr.  Mulqueen  received  a  telegram  which  called  for  his  imme- 
diate departure  for  New  York,  and,  therefore,  I  trust  the  committee 
will  excuse  him  on  that  account.  Mr.  Chairman,  are  we  in  Con- 
vention or  Committee  of  the  Whole? 

The  Chairman  —  Committee  of  the  Whole. 

Mr.  Blake  —  I  think  the  question  which  was  raised  here  that 
there  was  no  quorum  was  premature.  If  I  understand  the  rule 
properly,  when  less  than  a  quorum  votes  on  any  subject  under 
consideration  there  has  been  no  vote.  I  do  not  know  that  it  is 
proper  for  me  to  raise  the  question  at  this  time,  the  President  hav- 
ing vacated  the  chair,  and  we  are  now  in  Committee  of  the  Whole, 
but  I  should  say  there  must  be  a  vote  to  show  that  no  quorum 
is  present  before  a  question  can  be  raised  that  there  is  no  quorum 
here.  There  has  been  no  vote. 

Mr.  Cochran  —  I  desire  to  call  the  attention  of  the  Chair  to  rule 
28  that  makes  it  the  duty  of  the  Chair  to  report  to  the  President 
the  fact  that  there  is  no  quorum  present. 

Mr.  Choate — That  fact  has  to  be  ascertained  in  Committee  of 
the  Whole  before  that  is  required. 

Mr.  Cochran  —  I  make  the  point  of  order  that  there  is  no  quorum 
present  in  Committee  of  the  Whole. 

The  Chairman  —  The  point  is  not  sustained. 

Mr.  Kenvin  —  I  make  the  point  of  order  that  there  is  no  quorum. 


824  REVISED  RECORD.  [Saturday, 

The  Chairman  —  The  Chair  refuses  to  recognize  Mr.  Kerwin. 

Mr.  Blake  —  Mr.  Chairman,  I  was  about  to  say,  although  some- 
what late,  that  the  motion  might  be  proper,  if  the  vote  had  been 
taken  and  disclosed  the  fact  that  there  was  no  quorum  present. 
But  there  has  been  no  vote  upon  any  question  what- 
ever. If  you  will  examine  the  first  line  of  rule  63,  it  appears  that 
"  when  less  than  a  quorum  vote  on  any  subject  under  consideration 
by  the  Convention,  it  shall  be  in  order,  on  motion,  to  close  the  bar 
of  the  Convention,  whereupon  the  roll  of  members  shall  be  called  by 
the  Secretary,  and,  if  it  is  ascertained  that  a  quorum  is  present,  either 
by  answering  to  their  names  or  by  their  presence  in  the  Convfntion, 
etc."  Of  course,  that  may  not  be  proper  to  raise  now,  but,  as  has 
been  suggested  by  the  President,  it  must  be  made  manifest  here 
by  some  action  before  the  question  can  be  raised. 

Mr.  McDonough  —  Mr.  President  and  gentlemen,  I  understand 
that  there  is  no  desire  to  take  advantage  of  the  few  here,  the 
small  attendance,  to  defeat  this  measure.  It  is  agreed  that  it  ought 
to  be  discussed,  and  it  can  be  disposed  of  in  a  short  time,  unless 
we  go  back  to  Greece  and  Rome  and  all  the  way  down.  I  hope  the 
question  may  not  be  raised  of  no  quorum,  but  that  we  can  go  on 
with  the  discussion  of  this  measure  this  afternoon.  I  have  assur- 
ances of  members  that  are  opposed  to  this  measure  that  they  are 
not  inclined  to  force  a  vote  this  afternoon. 

Mr.  Choate  —  There  can  be  no  vote  taken  without  a  quorum. 

Mr.  Alvord  —  Mr.  President,  I  rise  to  a  point  of  order. 

The  Chairman  —  The  gentleman  will  state  his  point  of  order. 

Mr.  Alvord  —  Mr.  Chairman,  my  point  of  order  is  that  there  is 
no  quorum  here  at  present.  I  believe,  however,  that  I  am  wrong. 
I  think  there  is.  That  calls  for  the  determination  of  the  Chair,  in 
reference  to  the  fact.  It  can  only  be  done  in  Committee  of  the 
Whole  by  rising.  I,  therefore,  make  the  point  of  order  that  there 
is  no  quorum  present,  and  ask  .the  Chair  to  decide  that  point. 

The  Chairman  —  The  Chair  rules  that  the  question  cannot  arise 
until  a  vote  is  taken  in  Committee  of  the  Whole,  on  business  upon 
which  the  committee  is  then  sitting. 

Mr.  Tekulsky  —  Mr.  President,  I  believe  that  if  the  Chairman 
will  ask  the  delegates  in  committee  to  rise  and  be  counted,  we  can 
easily  find  out  if  there  is  a  quorum  present. 

The  Chairman  —  On  better  advice  the  Chair  so  rules. 
(Laughter.) 

Mr.  Tekulsky  —  I  make  that  as  a  motion. 


August  18.]  CONSTITUTIONAL  CONVENTION.  825 

The  Chairman  —  The  gentlemen  present  will  please  rise  and  be 
counted  by  the  Secretary. 

The  Secretary  proceeded  to  cotmt  the  members  present. 

The  Chairman  —  There  is  no  quorum.  The  gentlemen  will  be 
seated. 

Mr.  Nicoll  —  Mr.  Chairman,  may  I  ask  what  the  count  was? 

The  Chairman  —  There  are  eighty-one  present. 

The  President  resumed  the  chair. 

Chairman  Brown  —  The  Committee  of  the  Whole  have  had  under 
consideration  the  proposed  constitutional  amendment  (printed  No. 
396),  entitled  "  An  act  to  amend  article  3  of  the  Constitution  relat- 
ing to  the  passage  of  laws,"  have  made  some  progress  in  the  same, 
but  finding  no  quorum  present,  have  instructed  the  chairman  to 
report  that  fact  to  the  Convention. 

The  President  —  The  gentlemen  hear  the  report  .of  the  Com- 
mittee of  the  Whole  that  there  is  no  quorum  present.  What  is  the 
pleasure  of  the  House? 

Mr.  Moore  —  I  now  move  a  call  of  the  House  under  rule  63. 

Mr.  Durfee  —  Mr.  President,  I  hope,  before  this  motion  carries, 
that  the  gentlemen  will  understand  what  it  implies.  A  call  of  the 
House  at  this  time,  with  members  absent  from  the  city  in  large 
numbers,  I  doubt  if  there  are,  perhaps,  a  quorum  in  the  city,  means 
the  disgatching  of  the  Sergeant-at-Arms  and  his  assistants  in  vari- 
ous directions  after  members  of  this  body.  It  involves  the  closing 
of  the  doors  of  this  chamber,  and  the  retention  of  all  those  that  are 
here  until  a  quorum  is  obtained,  at  whatever  expense  and  whatever 
delay,  until  the  Convention  shall  order  the  call  suspended.  Now, 
it  does  seem  to  me,  under  the  circumstances,  after  the  weeks  that 
we  have  been  engaged  here,  diligently  engaged,  it  is  not  advisable 
for  this  body  to  undertake  a  proceeding  of  that  character,  and,  if 
the  point  that  has  been  made  here  which  is  intended,  evidently,  to 
delay  this  body,  and  prevent  discussion,  which  might  go  on  — 
although  six  or  seven  less  than  a  majority  of  this  body  do  happen  to 
be  present  —  if  that  point  is  to  be  taken  under  circumstances  of  this 
character,  and  is  followed  by  a  call  of  the  House,  it  will  involve 
immense  hardship  upon  each  member  of  the  Convention  present. 

The  President  —  The  Chair  is  of  the  opinion  that  rule  63  does 
not  require  a  call  of  the  House  at  this  time,  but  the  matter  is  gov- 
erned by  rule  61.  Rule  63  provides  that  "  when  less  than  a  quorum 
in  the  Convention  vote  on  any  subject  under  consideration  by  the 
Convention  it  shall  be  in  order  to  compel  members  to  vote." 


826  REVISED  RECORD.  [Saturday, 

Under  rule  62  a  call  of  the  Convention  may  be  made,  for  the 
purpose  of  securing  the  attendance  of  members.  Does  Mr.  Moore 
make  the  point  under  rule  62? 

Mr.  Moore — Yes,  sir,  I  make  it  under  rule  62. 

Mr.  Tekulsky  —  Mr.  President,  prior  to  voting  upon  the  call  of 
the  House,  I  would  move  we  have  a  roll-call,  and,  if  we  do  not  find 
a  quorum  present,  I  am  ready  to  second  the  motion  of  Mr.  Moore. 
The  roll  ought  to  be  called  first. 

The  President  —  The  Secretary  will  call  the  roll. 

Mr.  Kervvin  —  Mr.  President,  I  rise  to  a  point  of  order. 

The  President  —  State  your  point  of  order. 

Mr.  Kerwin  —  My  point  of  order  is  that  the  chairman  of  the 
Committee  of  the  Whole  reported  no  quorum,  and  it  is  the  duty 
of  the  President,  on  going  into  his  seat,  to  order  the  Sergeant-at- 
Arms  to  bring  every  member  of  the  Convention  in  the  building 
before  the  Convention. 

The  President  —  There  is  no  such  rule  known  to  the  Chair  what- 
ever. The  motion  is  that  there  shall  be  a  call  of  the  House.  That 
is  open  for  the  consideration  of  the  Convention. 

Mr.  I  S.  Johnson  —  Mr.  President,  I  do  not  understand  that  it 
necessarily  follows  that  you  have  to  send  after  men.  A  call  of  the 
House  does  not  imply  that  you  have  to  send  after  men.  The  call 
of  the  House  is  simply  to  ascertain  who  are  absent. 

Mr.  Tekulsky  —  Mr.  President,  I  rise  to  a  point  of  order. 

The  President  —  Mr.  Tekulsky  will  state  his  point  of  order. 

Mr.  Tekulsky  —  My  point  of  order  is  that  there  is  a  motion 
before  the  Convention  for  a  roll-call,  and,  if  it  is  found  then  that 
there  is  no  quorum  present,  it  is  time  enough  for  a  call  of  the 
House. 

The  President  —  The  motion  is  for  a  call  of  the  House,  and  that 
is  open  for  consideration.  Mr.  I.  S.  Johnson  has  the  floor. 

Mr.  I.  S.  Johnson  —  Mr.  President,  I  was  simply  making  the 
suggestion,  in  answer  to  one  remark  that  was  made  here,  that  it 
would  be  necessary  to  send  for  all  members  absent  that  were  outside 
of  the  city,  that  I  do  not  know  that  the  call  of  the  House  necessarily 
requires  it.  If  the  call  of  the  House  determines  that  there  are  not  a 
sufficient  number  of  members  present,  then  the  House  itself  will 
determine  whether  the  Sergeant-at-Arms  shall  bring  in  the  mem- 
bers. When  he  has  brought  in  three  or  four  the  call  may  be  sus- 
pended. I  do  not  apprehend  that  it  will  be  necessary  to  send  to 
New  York  or  anywhere  else. 


August  18.]  CONSTITUTIONAL  CONVENTION.  827 

Mr.  E.  A.  Brown  —  Mr.  President,  I  make  the  point  of  order 
that  the  motion  is  not  debatable  under  rule  44. 

Mr.  Alvord  —  Mr.  President,  the  rule  is  perfectly  plain.  A  call 
of  the  House  can  be  ordered,  but  b'efore  that  is  ordered  a  roll-call 
should  be  had  to  determine  whether  the  report  of  the  Committee' 
of  the  Whole  is  correct  or  not.  We  can  only  order  a  call  of  the 
House  or  adjourn.  Those  are  the  only  two  things  we  can  do. 

The  President  —  That  is  correct  and  the  Secretary  will  call  the 
roll. 

The  Secretary  called  the  roll. 

The  President  —  There  are  eighty-one  present.  Less  than  a 
quorum. 

Mr.  Maybee  —  Mr.  President,  I  did  not  notice  that  my  name  was 
called. 

Mr.  Vedder  —  Mr.  President,  I  see  by  rule  63  that  when  the  roll 
is  called,  if  it  be  ascertained  by  it,  or  by  the  President,  that  there 
is  a  quorum  present  —  now,  here  are  two  already  present  that  were 
not  counted.  Not  only  the  roll-call  is  to  govern  as  an  element, 
but  also  the  eyes  of  the  President  to  see  if  there  are  not  delegates 
present  who  have  not  answered  to  their  names. 

Mr.  Moore  —  Mr.  President,  I  beg  to  call  attention  to  the  fact 
that  this  call  is  under  rule  62,  not  under  rule  63.  Rule  63  applies 
when  the  Convention  is  voting  upon  something.  This  is  simply 
a  call  to  ascertain  how  many  are  present  under  rule  62. 

Mr.  Alvord  —  Mr.  President,  there  are  but  two  questions,  and 
they  are  not  debatable.  One  is  a  call  of  the  House  and  the  other 
is  to  adjourn.  I  move  that  this  Convention  do  now  adjourn. 

Mr.  Kerwin  —  I  second  the  motion. 

The  President  put  the  question  on  Mr.  Alvord's  motion  to 
adjourn,  and  it  was  determined  in  the  negative. 

Mr.  Kerwin  —  I  now  move  a  call  of  the  House,  Mr.  President. 

The  President  put  the  question  on  the  motion  of  Mr.  Kerwin, 
and  it  was  determined  in  the  negative. 

Mr.  Kerwin  —  Both  motions  now  that  could  be  offered  having 
been  lost,  I  call  upon  the  President  to  adjourn  this  Convention  for 
the  want  of  a  quorum. 

The  President  —  The  President  does  not  know  that  he  has  the 
power  to  do  it. 

Mr.  Cookinham  —  Mr.  President,  I  certainly  am  willing 

Mr.  Kerwin  —  I  rise  to  a  point  of  order. 


828  REVISED  RECORD.  [Saturday, 

The  President  —  Mr.  Cookinham  has  the  floor.  You  can  state 
your  point  of  order. 

Mr.  Kerwin  —  My  point  of  order  is  that  the  roll  having  been 
called  and  no  quorum  being  present,  there  are  only  two  motions 
left  for  the  Chair  to  entertain;  that  of  a  call  of  the  House  and  a 
motion  to  adjourn.  Both  of  these  motions  having  been  defeated, 
I  now  call  upon  the  President  to  adjourn  the  Convention.  I  raise 
this  point  of  order  and  ask  for  a  ruling  of  the  Chair. 

The  President  —  Will  Mr.  Kerwin  point  out  any  ruling  that  gives 
the  Chair  that  authority? 

Mr.  Kerwin  —  I  have  not  got  the  rules  at  the  tips  of  my  fingers, 
but  there  is  a  rule  that  states  that  only  two  motions  can  be 
entertained,  a  motion  for  a  call  of  the  House  and  a  motion  to 
adjourn.  There  is  no  business  that  can  be  proceeded  with.  I  ask 
for  the  decision  of  the  Chair. 

Mr.  Titus  —  I  move  we  take  a  recess  until  Monday  morning  at 
ten  o'clock. 

Mr.  Blake  —  Is  that  debatable,  Mr.  President? 

The  President  —  The  original  motion  to  adjourn  is  not  debatable. 

Mr.  Blake  —  It  seems  to  me,  Mr.  President,  that  this  situation 
discloses  a  sad  instance  of  inconsistency  on  the  part  of  certain 
gentlemen  in  this  Convention.  Now,  I  do  not  wish  to  indulge  in 
any  strictures  upon  the  action  of  the  Convention  or  the  action  of  any 
gentleman  in  this  Convention,. but  the  President  and  the  members 
of  this  Convention  remember  very  well  the  scene  that  presented 
itself  a  few  days  since,  when  the  motion  prevailed  to. sit  six  days, 
sixteen  sessions,  in  a  week.  I  voted  and  I  worked  against  the 
adoption  of  that  rule,  as  you  very  well  know,  Mr.  President.  I  do 
not  mean  to  claim  by  that  any  honor  or  credit  for  myself  or  to 
indulge  in  any  criticism  of  the  action  of  any  other  gentleman,  but 
the  great  majority  of  this  body  enthusiastically  voted  for  the 
adoption  of  that  measure,  and  yet  many  of  those  gentlemen  must 
have  known,  and  we  may  assume  to  judge  so,  from  the  action  of 
more  than  a  majority  of  this  Convention,  that  they  would  attempt 
to  evade  the  operation  of  the  very  rule  for  whose  adoption  they 
voted  at  that  time.  I  say,  sir,  it  is  not  fair  or  just  to  the  gentlemen 
in  this  Convention  who  are  here  to-day.  I  had  better  reason  than 
most  of  those  gentlemen  to  absent  myself,  and  I  voted  and  worked 
against  the  adoption  of  that  proposition,  and  these  gentlemen  who 
raised  their  voices  loud  and  enthusiastically  for  its  adoption  have 
fled  from  this  Convention  and  from  the  performance  of  their  duty. 
Now,  sir,  I  think  we  are  justified  in  indulging  in  so  much  of  stric- 


August  18.]  CONSTITUTIONAL  CONVENTION.  829 

ture  upon  these  members  who  have  absented  themselves  from  this 
session.  That  is  all  I  care  to  say.  Whether  the  Convention 
adjourns  or  not,  I  care  not,  but  it  seems  to  me  that  it  ought  to  try 
to  do  some  business.  We  who  have  remained  here  and  could 
have  gone  to  New  York,  been  down  there  all  afternoon  attending 
to  some  business,  are  here.  These  gentlemen,  some  of  the  mem- 
bers of  the  Committee  of  Rules,  who  voted  so  enthusiastically  for 
the  adoption  of  the  rule 

Mr.  Alvord  —  Mr.  President,  I  rise  to  a  point  of  order. 

The  President  —  The  gentleman  will  state  his  point  of  order. 

Mr.  Alvord  —  My  point  of  order  is,  that  there  is  no  motion  before 
the  Convention. 

Mr.  Blake  —  I  am  endeavoring,  sir,  to  entertain  the  Convention 
until  such  time  as  we  may  get  a  quorum. 

The  President  —  Mr.  Alvord's  point  of  order  is  well  taken. 

Mr.  Acker  —  I  move  you,  sir,  that  the  sergeant-at-arms  be  author- 
ized to  step  down  and  ask  the  two  delegates  from  Albany  to  appear 
and  make  a  quorum,  so  that  we  can  go  on. 

The  President  —  That  motion  is  entirely  in  order  under  rule  61. 

The  President  put  the  question  on  the  motion  of  Mr.  Acker,  and 
it  was  determined  in  the  affirmative. 

The  President  —  The  sergeant-at-arms  will  attend  to  the  order 
of  the  Convention. 

Mr.  Alvord  —  Mr.  President,  I  move  that  the  motion  for  the  call 
of  the  House  be  laid  upon  the  table. 

The  President  —  That  was  voted  down,  was  it  not? 

Mr.  Alvord  —  Then,  sir,  I  move  again  that  this  House  do  now 
adjourn. 

Mr.  Dean  —  On  that  motion  I  call  for  the  ayes  and  noes. 
The  call  for  the  ayes  and  noes  was  not  sustained. 

The  President  put  the  question  upon  the  motion  to  adjourn,  and 
declared  the  motion  to  be  lost. 

Mr.  Alvord  —  I  call  for  the  count. 

A  rising  vote  was  then  taken,  resulting  in  the  defeat  of  the 
motion,  twenty-one  to  forty-three. 

Mr.  Holls  —  I  would  like  to  ask  for  information,  whether  the 
Secretary  can  inform  the  House  how  many  delegates  that  have  not 
been  excused  for  to-day  are  absent.  I  believe  a  list  of  those  excuses 
has  been  kept,  and  a  list  of  those  present  he  has  now  in  his 
possession. 


830  REVISED  RECORD.  [Saturday, 

The  President  —  It  is  entirely  competent  for  the  House  to  ascer- 
tain who  have  been  excused,  and  how  many  are  absent  without 
excuse. 

Mr.  W.  H.  Steele  —  I  move  that  this  Convention  do  now  take  a 
recess 

Mr.  Rolls  —  A  point  of  order.  My  point  of  information  has 
not  been  answered  yet. 

Mr.  Yedder  —  Do  I  understand,  Mr.  President,  that  under  rule 
61  the  sergeant-at-arms  has  been  directed  to  bring  in  what  members 
he  may  find  in  Albany,  and  is  now  performing  that  duty? 

The  President  —  The  Chair  understands  that  the  sergeant-at- 
arms  was  directed  to  summon  the  members  residing  in  Albany  who 
are  not  present,  under  rule  61. 

Mr.  Peck  —  I  would  like  to  ask  how  the  Chair  rules  as  to  what 
constitutes  a  majority.  The  statute  on  the  subject  is  section  9  of 
the  act  organizing  the  Convention,  ''  A  majority  of  the  Convention 
shall  constitute  a  quorum  to  do  business." 

The  President  —  The  Chair  understands  by  that,  that  a  majority 
of  the  actual  members  of  the  Convention  constitutes  a  quorum. 
There  were  175  members  elected,  of  whom  seven  have  been  marked 
off  either  as  dead,  resigned  or  never  having  appeared  to  take  the 
oath,  leaving  168,  of  which  eighty-five  is  a  quorum. 

Mr.  McDonough  —  Mr.  President,  I  ask  unanimous  consent  to 
go  on  with  this  amendment  in  Committee  of  the  Whole. 

The  President  —  It  does  not  require  unanimous  consent;  it  only 
requires  the  consent  of  Mr.  Cochran  and  Mr.  Kerwin. 

Mr.  Kerwin  —  Mr.  President,  on  one  condition  will  I  withdraw 
my  objection  —  that  the  Chair  will  state  now  that  on  the  final 
passage  of  any  amendment,  he  will  hold  the  same  ruling  that  he 
holds  now  to  get  a  quorum. 

The  President  —  The  Chair  unfortunately  is  bound  by  the  rules 
of  the  Convention,  that  on  the  final  passage  of  any  amendment,  a 
clear  majority  of  all  the  members  elected  is  necessary. 

Mr.  Kerwin  —  Then  I  hold  a  clear  majority  of  all  the  members 
elected  is  due  to  the  Committee  of  the  Whole. 

The  President  —  Does  Mr.  Kerwin  object  to  the  discussion  going 
on  without  a  vote  being  taken? 

Mr.  Kerwin  —  I  object  to  my  vote  being  taken  on  any  ground. 

Mr.  Vedder — I  make  the  point  of  order,  Mr.  President,  that 
there  is  nothing  before  us  now  to  show  but  that  a  quorum  is  present. 


August  18.]  CONSTITUTIONAL  CONVENTION.  831 

So  far  as  this  Convention  now  stands,  we  have  a  quorum,  and  there 
is  nothing  to  dispute  it.     \Ye  can  go  on  and  do  business. 

Mr.  Xicoll  —  Mr.  President,  I  move  that  the  doors  of  the  Con- 
vention be  closed  while  the  sergeant-at-arms  is  engaged  in  finding 
additional  members,  or  else  we  will  find  ourselves  in  a  few  moments 
without  a  quorum  again. 

Mr.  Kerwin  —  If  there  is  no  objection,  Mr.  President,  I  will  with- 
draw my  objection  to  proceeding  with  the  regular  order  of  business. 

The  President  —  Then  Mr.  Brown  will  take  the  chair,  and  the 
discussion  may  go  on. 

Mr.  Cochran  —  I  do  not  know  that  Mr.  Kerwin  has  any  power 
to  withdraw  mine. 

Mr.  E.  R.  Brown  in  the  chair. 

The  Chairman  —  The  House  is  now  in  Committee  of  the  Whole 
on  general  order  No.  28.  What  is  the  pleasure  of  the  committee? 

Mr.  Nicoll  called  for  the  question. 

Mr.  Cochran  —  I  believe  the  motion  was  to  rise  and  recommend 
that  the  committee  reject  this  in  its  entirety.  I  believe  that  is  the 
pending  motion. 

The  Chairman  —  The  Chair  does  not  understand  that  that  is  the 
motion. 

Mr.  McDonough  —  Mr.  Chairman,  I  move  that  the  committee 
rise,  report  progress  and  ask  leave  to  sit  again. 

The  Chairman  put  the  question  on  the  motion  of  Mr.  McDonough, 
and  it  was  determined  in  the  negative. 

The  Chairman  —  What  is  the  further  pleasure  of  the  committee? 

Mr.  Moore  —  Mr.  Chairman,  if  nobody  else  seems  to  desire  to  say 
anything  on  this  matter,  I  want  to  ask  Mr.  McDonough  a  question 
or  two  for  information.  I  want  to  ask  him  what  effect  he  thinks 
this  act,  if  it  be  adopted  by  the  people  and  become  a  part  of  the 
organic  law  of  the  State,  would  have  upon  section  18  of  the  Con- 
stitution, relative  to  the  prohibition  of  the  Legislature  relative  to 
passing  certain  private  or  local  bills.  I  ask  for  information. 

Mr.  McDonough  —  My  opinion  is  it  would  have  no  effect  at  all ; 
that  this  only  gives  the  Legislature  permission  to  submit  such  mat- 
ter to  the  vote  of  the  people  as  it  may  pass  upon  itself,  and  if  it  have 
not  the  right  to  pass  upon  the  bill  itself,  it  has  no  right  to  submit  it 
to  the  people.  I  am  not  a  judge  of  the  Supreme  Court,  and  have 
not  general  jurisdiction,  consequently,  it  is  only  the  opinion  of  a 
private  citizen,  and  the  gentleman  will  have  to  take  it  for  what  it 
is  worth. 


832  REVISED  RECORD.  [Saturday, 

Mr.  Rolls  —  I  would  like  to  ask  for  information,  Mr.  Chairman. 
Would  it  be  in  order  to  move  that  this  committee  rise  and  recom- 
mend to  the  Convention  to  take  a  vote  on  this  amendment  on  Mon- 
day? Would  such  a  motion  be  in  order?  If  it  were  in  order,  I 
should  consider  it  a  happy  solution  of  the  difficulty,  because  we 
could  then  proceed  to  the  consideration  of  another  general  order 
upon  which  somebody  might  wish  to  debate. 

Mr.  McDonough  —  If  that  is  in  order,  it  will  be  perfectly  satis- 
factory to  me. 

The  Chairman  —  The  Chair  rules  that  such  a  motion  cannot  now 
be  entertained. 

Mr.  McDonough  —  I  move,  Mr.  Chairman,  that  we  now  rise  and 
report  this  favorably,  and  ask  that  a  vote  be  taken  on  it  next  Mon- 
day. That,  I  am  told  by  the  gentleman  at  my  right,  is  in  order. 

Mr.  Dean  —  I  object  to  any  such  complication  of  the  question. 
I  do  not  think  that  this  committee  has  the  power  to  direct  what 
the  Convention  shall  do  upon  the  report  of  a  committee. 

The  Chairman  —  The  point  being  raised  that  this  committee  can- 
not direct  a  vote  to  be  taken  next  Monday,  the  point  is  sustained. 

Mr.  Crosby  —  Mr.  Chairman,  I  move  that  this  committee  do  now 
rise  and  report  this  proposition  adversely. 

Mr.  McDonough  —  If  that  is  to  be  done,  I  will  raise  the  question 
of  no  quorum. 

Mr.  Jesse  Johnson  —  Mr.  Chairman,  I  think  that  no  vote  should 
be  taken  on  this  proposition  unless  it  be  with  a  clear  quorum.  I 
think  the  consent  of  not  to  raise  the  point  of  no  quorum  was  given 
on  that  understanding.  I  hope,  therefore,  that  the  motion  will  not 
be  pressed. 

Mr.  Morton  —  Mr.  Chairman,  the  object  sought  to  be  obtained 
by  the  friends  of  this  measure  can  be  obtained  in  a  very  easy  man- 
ner. This  motion  of  Mr.  McDonough's  may  be  carried  in  this  com- 
mittee, and  when  the  committee  reports  to  the  Convention,  Mr. 
McDonough's  motion  that  the  vote  be  taken  on  Monday,  or  at  any 
other  time,  would  be  in  order. 

Mr.  Vedder  —  Mr.  Chairman,  I  suggest  this,  which  will  dispose 
of  the  matter,  it  seems  to  me.  Let  leave  be  granted  by  this  com- 
mittee to  report  progress  on  the  bill,  and  leave  be  given  to  sit  again, 
and  let  that  be  in  good  faith  carried  out.  Then,  at  the  next  meeting 
of  the  Committee  of  the  Whole,  when  we  shall  have  a  quorum,  it 
will  take  but  a  few  minutes  to  dispose  of  it,  and  that  will  be  keep- 
ing faith  with  the  measure  and  with  these  parties,  and  permit  us, 


August  iS.J  CONSTITUTIONAL  CONVENTION.  833 

when  we  get  through  with  this,  to  do  our  other  business  in  Com- 
mittee of  the  Whole,  although  there  will  not  be  technically  a 
-  quorum. 

Mr.  Mereness  —  Mr.  Chairman,  rule  44  provides  that  when  a 
question  is  under  consideration,  "  the  following  motions  only  shall 
be  received,"  one  of  which  is,  to  postpone  to  a  certain  day,  and  it 
seems  to  me  that  if  the  Committee  of  the  Whole 

Mr.  Vedder  —  That,  Mr.  Chairman,  was  the  motion,  that  I  made, 
as  I  understand  it,  that  the  committee  do  now  rise  and  report  prog- 
ress, and  ask  leave  to  sit  again. 

The  Chairman  —  There  was  a  motion  already  before  the  House, 
made  by  Mr.  Crosby. 

Mr.  Vedder  —  The  same  motion? 

The  Chairman  —  No;  it  was  the  motion  to  rise  and  report 
adversely  on  the  amendment. 

Mr.  Kerwin  —  I  rise  to  a  point  of  order.  In  order  to  state  my 
point  of  order  correctly,  I  wish  to  say  that  I  withdrew  my  objec- 
tion on  the  ground  that  there  should  be  no  vote  taken  this  after- 
noon. Now,  that  a  vote  is  trying  to  be*  forced,  I  raise  the  point  of 
order  that  there  is  no  quorum  present.  They  are  trying  to  report 
this  bill  adversely.  A  motion  has  been  offered  to  that  effect.  I 
raise  the  point  of  order  that  there  is  no  quorum  present. 

The  Chairman  —  The  gentleman  rose  to  a  point  of  order.  I  do 
not  understand  that  to  be  a  point  of  order. 

Mr.  Kerwin  —  I  do  not  propose  to  take  any  chances  on  the  vote 
when  there  is  no  quorum. 

The  Chairman  —  Does  the  gentleman  from  Albany  object  — 
Mr.    Kerwin  —  I    object    to   any    further   consideration    of   this 
amendment  until  we  get  a  quorum  present. 

The  Chairman  —  Does  the  gentleman  from  Albany  object  to 
entertaining  a  motion  to  rise,  report  progress  and  ask  leave  to  sit 
again? 

Mr.  Kerwin  —  The  minute  that  vote  is  taken  and  defeated,  the 
people  who  are  advancing  the  theory  to  report  adversely  will  force 
their  vote.  I  do  not  propose  to  take  any  chances. 

Mr.  Holls  —  Mr.  Chairman,  the  motion  was  made  that  this  com- 
mittee rise,  report  progress  and  ask  leave  to  sit  again.     That  motion 
is  not  debatable,  nor  is  it  in  order  to  raise  the  point  of  order  that 
there  is  no  quorum  when  that  motion  is  pending. 
53 


834  REVISED  RECORD.  [Saturday, 

Mr.  Moore  —  I  rise  to  a  point  of  order. 

Mr.  Holls  —  I  ask  for  a  decision  of  my  point  of  order. 

Mr.  Moore  —  I  make  the  point  of  order,  Mr.  Chairman,  that  the 
only  motion  before  this  House  now,  is  the  motion  of  Mr.  Crosby, 
which  should  be  put  before  any  other  motion.  He  did  not  with- 
draw it. 

The  Chairman  —  The  motion  now  before  the  committee  is  the 
motion  of  Mr.  Crosby,  that  the  committee  do  rise  and  report 
adversely  on  this  amendment. 

Mr.  Kerwin  —  I  object  to  any  vote  being  taken,  Mr.  President. 
I  raise  the  question  of  no  quorum. 

Mr.  Holls  —  Mr.  Chairman,  do  I  understand  that  my  point  of 
order  is  overruled,  that  Mr.  Vedder's  motion  that  this  committee 
now  rise,  report  progress  and  ask  leave  to  sit  again  takes  prece- 
dence over  Mr.  Crosby's  motion,  and  is  not  debatable? 

The  Chairman  —  What  was  your  point  of  order? 

Mr.  Holls  —  My  point  of  order  was,  that  the  motion  of  Mr. 
Vedder  to  rise  and  report  progress  takes  precedence  over  Mr. 
Crosby's  motion. 

The  Chairman  —  The  point  of  order  is  well  taken.  The  motion 
before  the  House  now  is  that  the  committee  rise,  report  progress 
and  ask  leave  to  sit  again. 

The  Chairman  then  put  the  question  on  Mr.  Vedder's  motion  that 
the  committee  rise,  report  progress  and  ask  leave  to  sit  again,  and 
it  was  determined  in  the  affirmative. 

President  Choate  resumed  the  chair. 

Mr.  Holls  —  Mr.  President,  I  now  ask  for  the  information  which 
I  requested  before,  as  to  how  many  members  of  this  Convention, 
and  who  they  are,  if  the  Secretary  knows,  are  absent  without 
excuse? 

The  President  —  The  gentleman  will  please  wait  until  the  Com- 
mittee of  the  Whole  is  disposed  of. 

Chairman  Brown  —  Mr.  President,  the  Committee  of  the  Whole 
have  had  under  consideration  the  proposed  constitutional  amend- 
ment (printed  No.  396),  entitled,  "  Proposed  constitutional  amend- 
ment to  amend  article  3  of  the  Constitution,  relating  to  the  passage 
of  laws,"  have  made  some  progress  in  the  same,  but  not  having 
gone  through  therewith,  have  instructed  the  Chairman  to  report 
that  fact  to  the  Convention,  and  ask  leave  to  sit  again. 

The  President  put  the  question  on  agreeing  with  the  report  of 


August  18.]  CONSTITUTIONAL  CONVENTION.  835 

the  Committee  of  the  Whole,  and  it  was  determined  in  the 
affirmative. 

The  President  —  The  Secretary  will  inform  the  Convention  as  to 
the  question  asked  by  -Mr.  Holls. 

The  Secretary  —  The  members  absent  without  excuse  are  Messrs. 
Abbott,  Ackerly,  Banks,  Campbell,  Chipp,  Clark,  H.  A. 

Mr.  Hamlin  —  Mr.  President,  as  regards  Mr.  Chipp,  he  was  called 
away  unexpectedly,  and  asked  me  to  present  his  excuse  to  the 
Convention. 

The  President  put  the  question  on  excusing  Mr.  Chipp,  and  he 
was  excused. 

The  Secretary  (resuming)  —  Messrs.  Crimmins,  Danforth, 
Durnin,  Faber,  Fields,  Fitzgerald,  Foote,  Francis,  Fraser,  Galinger, 
Green,  J.  1.,  Herzberg,  Hirschberg 

Mr.  Holls  —  Mr.  President,  with  reference  to  Mr.  Hirschberg,  he 
left  ill,  and  went  to  his  home  ill.  I  ask  that  he  be  excused. 

The  President  put  the  question  on  excusing  Mr.  Hirschberg,  and 
he  was  excused. 

Mr.  Cochran  —  Mr.  President,  with  reference  to  Mr.  Francis,  he 
asks  me,  if  there  was  any  roll-call,  to  say  that  he  had  been  suddenly 
called  home  to  his  family,  and  I  promised  to  do  so. 

The  President  put  the  question  on  excusing  Mr.  Francis,  and  he 
was  excused. 

Mr.  Tekulsky —  Mr.  President,  I  was  here  the  other  day  when 
Mr.  Herzberg  asked  leave  to  be  excused,  and  he  was  excused  by 
the  Convention. 

Mr.  Barrow  —  Mr.  President,  I  ask  leave  to  be  excused  for  the 
remainder  of  the  afternoon.  I  ask  this  in  good  faith.  I  desire  to 
get  home,  on  account  of  illness  in  my  family,  and  I  have  to  take  the 
train  in  fifteen  minutes  in  order  to  do  it. 

The  President  put  the  question  on  excusing  Mr.  Barrow,  as 
requested,  and  he  was  so  excused. 

The  President  —  Mr.  Herzberg  was  not  excused  for  to-day,  but 
for  some  other  day;  yesterday  and  the  day  before. 

The  Secretary  (resuming)  —  Messrs.  Kinkle,  Koch,  Kurth,  Lester, 
Lyon,  McCurdy,  McMillan,  Mulqueen,  Rowley,  Speer,  Storm. 

Mr.  Jesse  Johnson  —  Mr.  President,  I  desire  to  move  the  excuse 
of  Mr.  Banks.  He  was  suddenly  called  away,  and  desired  me  to 
present  his  excuse;  and,  I  think,  he  has  been  uniformly  present. 


836  REVISED  RECORD.  [Saturday, 

The  President  put  the  question  on  excusing  Mr.  Banks,  as 
requested,  and  he  was  so  excused. 

Mr.  Church  —  Mr.  President,  I  desire  to  ask  for  the  excuse  of 
Messrs.  Ackerly  and  Storm.  I  know  not  their  excuses,  but  they 
must  be  good. 

The  President  put  the  question  on  excusing  Messrs.  Ackerly  and 
Storm,  and  it  was  determined  in  the  negative. 

Air.  Hamlin  —  Mr.  President,  Mr.  McCurdy  was  called  away 
unexpectedly,  and  left  his  excuse  with  me.  It  was  on  business  that 
was  pressing,  and  I  ask  that  he  be  excused. 

The  President  put  the  question  on  excusing  Mr.  McCurdy,  as 
requested,  and  it  was  determined  in  the  negative. 

Mr.  C.  H.  Lewis  —  Mr.  President,  I  wish  to  ask  for  excuse  for 
Mr.  Abbott.  Mr.  Abbott  had  his  family,  including  a  little  girl,  here 
with  him,  and  one  of  them  was  ill,  and  he  had  to  leave  on  a  noon 
train  to  take  them  home.  I  ask  to  have  him  excused  by  the 
Convention. 

The  President  put  the  question  on  excusing  Mr.  Abbott,  and  he 
was  excused. 

Mr.  Nicoll  —  Mr.  President,  I  ask  to  have  Mr.  F.  T.  Fitzgerald 
excused.  He  was  obliged  to  return  to  the  city  of  New  York  for  the 
purpose  of  transacting  business  in  his  Surrogate's  Court. 

The  President  put  the  question  on  excusing  Mr.  Fitzgerald,  as 
requested,  and  he  was  excused. 

Mr.  Titus  —  Mr.  President,  Mr.  Mulqueen  was  excused  by  the 
Convention  in  Committee  of  the  Whole.  He  was  called  away  by 
a  dispatch. 

Mr.  President  —  Mr.  Mulqueen  was  excused  for  Monday. 

Mr.  C.  H.  Truax  —  Mr.  President,  I  think  we  have  had  a  whole 
lot  of  fun  this  afternoon,  and  as  it  is  about  time  when,  under  the 
rules,  we  would  adjourn,  I  move  now  that  we  do  adjourn. 

Mr.  Barhite  —  Will  the  gentleman  withdraw  his  motion  for  a 
moment? 

Mr.  Truax  —  For  what  purpose? 

Mr.  Barhite —  I  desire  to  ask  for  the  excuse  of  a  member. 

Mr.  Truax  —  I  withdraw  for  Mr.  Barhite,  who  wants  to  have 
somebody  excused. 

Mr.  Meyenborg — Mr.  President,  I  rise  to  a  point  of  order.  It 
having  been  ascertained  that  there  is  no  quorum  present,  I  do  not 
think  it  is  within  the  province  of  the  members  to  excuse  anyone. 


August  18.]  CONSTITUTIONAL  CONVENTION.  837 

The  President  —  The  point  of  order  is  well  taken. 

The  President  then  put  the  question  on  the  motion  of  Mr.  Truax 
to  adjourn,  and  it  was  determined  in  the  affirmative. 


Monday  Morning,  August  20,  1894. 

The  Constitutional  Convention  of  the  State  of  New  York  met 
in  the  Assembly  Chamber,  at  the  Capitol,  Albany,  N.  Y.,  Monday 
morning,  August  20,  1894. 

President  Choate  called  the  Convention  to  order  at  ten  o'clock. 

Mr.  O'Brien  moved  that  the  reading  of  the  Journal  of  Saturday, 
August  eighteenth,  be  dispensed  with,  except  the  reading  of  the  list 
of  delegates  absent  on  Saturday  without  leave. 

The  President  put  the  question  on  dispensing  with  the  reading  of 
the  Journal,  and  it  was  determined  in  the  affirmative. 

The  President  —  The  Secretary  will  read  the  list  of  members 
absent  without  leave  on  Saturday. 

The  Secretary  read  the  list  as  follows : 

Messrs.  Campbell,  H.  A.  Clark,  Crimmins,  Danforth,  Durnin, 
Faber,  Fields,  Foote,  Fraser,  Galinger,  J.  I.  Green,  Herzberg, 
Kinkel,  Koch,  Lester,  Lyon,  McMillan,  Rowley,  Speer. 

The  President  —  This  list  will  be  referred  to  the  Financial  Secre- 
tary for  his  information. 

Mr.  Durnin  —  Mr.  President,  I  ask  that  my  name  be  erased  from 
that  roll  of  honor.  I  was  excused  for  four  days,  and  my  time  is  up 
this  morning,  and  I  am  here. 

Mr.  Foote  —  Mr.  President,  my  name  appears  upon  that  list.  I 
think  it  is  proper  to  say  that  I  was  summoned  to  Buffalo  on  Friday 
evening  on  business  which  could  not  be  attended  to  except  by  myself 
and  which  would  not  admit  of  delay. 

The  President  —  The  record  shows  that  Mr.  Durnin  is  correct. 
The  Secretary  will  correct  it  accordingly. 

Mr.  Francis  —  Mr.  President,  I  understand  my  name  is  on  that 
list.  I  was  here  at  the  last  session,  but  only  for  a  short  time.  I 
have  attended  the  Convention  at  every  session  and  have  been  present 
at  my  committee  meetings  at  every  session.  I  was  called  away  by 
a  disability  which  I  could  not  overcome.  • 

The  President  —  Mr.  Francis's  name  will  be  erased. 

Mr.  Lester  —  Mr.  President,  I  wish  to  state  that  at  the  adjourn- 
ment of  the  Convention  Saturday  morning,  after  the  morning  ses- 


838  REVISED  RECORD.  [Monday, 

sion,  I  received  a  summons  to  come  to  my  home  upon  a  matter  of 
pressing  importance,  a  matter  which  imperatively  required 
my  attendance  in  Saratoga.  The  train  which  it  was  necessary  for 
me  to  take  leaves  Albany  at  3:10,  which  made  it  utterly  impossible 
for  me  to  be  present  at  the  opening  of  the  afternoon  session  and 
ask  for  an  excuse,  and  I  was  compelled  to  leave  in  that  way. 

Mr.  Morton  —  Mr.  President,  I  would  like  to  call  the  attention  of 
the  Convention  and  of  the  financial  officer  to  what  I  understand  to  be 
the  situation  of  this  matter.  One  of  my  colleagues  was  here  Satur- 
day and  attended  until  the  last  hour  before  the  Convention 
adjourned,  when  he  was  compelled  to  go  to  his  home.  I  under- 
stand his  name  appears  on  that  list,  because  he  was  not  present 
during  a  roll-call  on  Saturday  afternoon.  Now,  Mr.  President,  I 
submit  that  a  forfeiture  of  pay  depends  upon  the  absence  of  the  mem- 
ber from  the  sessions  of  the  Convention  on  a  particular  day,  and  it 
does  not  depend  upon  the  absence  of  a  member  upon  a  roll-call  at  a 
certain  time  during  that  day,  and  that  no  member  of  this  Convention 
can  be  compelled  to  forfeit  his  pay  on  any  such  showing  as  that.  In 
other  words,  he  was  in  attendance  upon  the  Convention  at  that 
session. 

The  President  —  The  Chair  does  not  know  of  any  attempt  to 
deduct  the  pay  of  members.  This  was  only  for  the  purpose  of 
bringing  the  matter  more  forcibly  to  their  attention. 

Mr.  Forbes  —  Mr.  President,  I  desire  to  be  marked  as  present 
to-day.  I  was  excused  last  week  by  the  indulgence  of  the  Conven- 
tion, and  I  desire  to  withdraw  my  excuse  and  thank  the  members 
for  excusing  me. 

Mr.  Maybee  —  Mr.  President,  in  regard  to  my  colleague,  Mr. 
Danforth,  I  remember  distinctly  that  he  was  excused,  and  I  think 
the  fact  that  his  name  appears  on  that  list  is  due  to  an  oversight  on 
the  part  of  the  Secretary,  who  failed  to  note  the  fact  that  he  was 
excused. 

Mr.  Burr  —  Mr.  President,  is  Mr.  Faber's  name  on  that  list? 

The  President  — It  is. 

Mr.  Burr  —  He  was  excused. 

The  President  —  Memorials  and  petitions  are  in  order. 

Mr.  Moore  presented  a  petititon  from  manufacturers  of  plumbing 
materials  in  relation  to  the  employment  of  State  prisoners,  which 
was  referred  to  the  Committee  on  State  Prisons. 

Mr.  Francis  presented  a  petition  relative  to  political  meetings 
and  caucuses,  which  was  referred  to  the  Committee  on  Suffrage. 


August  20.]  CONSTITUTIONAL  CONVENTION.  839 

The  President  —  Does  any  delegate  desire  to  give  any  notice, 
make  any  motion  or  offer  any  resolution? 

Reports  of  standing  committees  are  in  order.  Has  any  standing 
committee  any  report  to  make? 

Has  any  special  or  select  committee  any  report  to  make? 

Mr.  Acker  —  Mr.  President 

Mr.  C.  B.  McLaughlin  —  Mr.  President,  on  Saturday  last  I  offered 
a  resolution  in  reference  to  making  the  report  of  the  Committee  of 
the  Whole  final.  That  was  referred  to  the  Committee  on  Rules. 
I  was  not  here  at  the  last  session  on  Saturday,  and  I  desire  to 
know  whether  any  action  was  taken  on  that? 

The  President  —  No  action  was  taken  covering  that  whole  general 
matter  referred  to  in  your  resolution,  but  the  Committee  on  Rules 
made  a  report,  recommending  an  amendment  to  rule  29,  that  some- 
what affected  it.  The  matter  was  to  be  brought  up  this  morning. 

Mr.  Acker  —  Mr.  President,  I  have  a  report  to  make,  but  the 
clerk  has  it  in  his  possession,  and  has  not  brought  it  around  yet, 
and  when  he  brings  it,  I  would  like  permission  to  present  it. 

Mr.  Moore  —  Mr.  President,  is  it  in  order  to  call  the  Printing 
Committee  to  book  this  morning  again? 

The  President  —  I  believe  that  is  always  in  order. 

Mr.  Moore  —  Mr.  President,  the  Convention  passed  a  resolution 
of  mine  some  day  last  week,  directing  that  the  Printing  Committee 
should  compel  the  printer  to  place  Document  No.  15,  complete,  upon 
the  files  of  the  members  this  morning.  I,  therefore,  wish  to  call  up 
that  motion  and  to  ask  the  Printing  Committee  where  Document 
No.  15  is;  whether  it  is  printed? 

The  President  —  Mr.  Hamlin  will  please  explain  why  the  order 
of  the  Convention  has  not  been  obeyed. 

Mr.  Hamlin  —  Mr.  President,  I  have  consulted  with  the  repre- 
sentatives of  The  Argus  Company,  and  I  am  informed  that,  owing 
to  the  fact  that  the  copy  was  not  received  at  as  early  a  time  as  was 
expected,  they  will  be  unable  to  furnish  it  this  morning.  They 
anticipated  that  they  would  have  it  here  this  morning,  but  there  has 
been  some  delay.  It  will,  however,  be  on  the  files  to-morrow  morn- 
ing. The  printer  informed  me  that,  owing  to  the  character  of  the 
work,  it  being  mostly  what  is  called  rule  and  figure  work,  it  required 
much  longer  time  than  ordinary  work,  but  they  are  making  all  the 
expedition  possible  in  the  matter. 

Mr.  Moore  —  Mr.  President,  I  move  you,  sir,  that  the  committee 
have  further  time,  and  that  Document  No.  15,  when  printed,  shall 


840  REVISED  RECORD.  [Monday, 

include  the  new  rules  which  were  reported  here  Saturday,  and  that 
the  document  be  placed  on  the  files  on  or  before  Friday. 

The  President  —  The  difficulty  is  that  they  were  reported,  but  not 
acted  upon. 

Mr.  Moore  —  I  mean  those  that  shall  be  acted  upon. 

Mr.  Hamlin  —  Mr.  President,  I  think  that  the  Convention  ought 
to  understand  what  the  effect  of  that  will  probably  be,  as  I  under- 
stand it.  This  document  is  practically  set  up  and  will  be  ready 
for  the  press,  if  it  has  not  already  been  printed.  That  will  require 
more  delay,  and  I  desire  that  the  Convention  should  understand  it. 

The  President  put  the  question  on  Mr.  Moore's  motion,  and  it 
was  determined  in  the  affirmative. 

The  President  —  The  report  of  the  Committee  on  State  Finances 
and  Taxation  is  now  presented  by  Mr.  Acker,  its  chairman,  and  will 
be  read  by  the  Secretary. 

The  Secretary  read  the  report  as  follows: 

Mr.  Acker,  from  the  Committee  on  State  Finances  and  Taxation, 
reports  in  favor  of  the  passage  of  a  proposed  amendment  to  article  3 
of  the  Constitution  (introductory  No.  389,  printed  No.  441), 
Mr.  Acker  dissenting  from  said  report,  which  report  was  agreed  to 
and  the  said  amendment  committed  to  the  Committee  of  the  Whole. 

Mr.  Acker,  from  the  Committee  on  State  Finances  and  Taxation, 
to  which  was  referred  the  proposed  amendment,  introduced  by 
Mr.  Pratt  (introductory  No.  241),  entitled,  "  Proposed  constitutional 
amendment  to  amend  article  7  of  the  Constitution,  by  adding  a  new 
section  thereto  relating  to  taxation,"  reports  adversely  thereto. 

The  President  —  Does  Mr.  Pratt  wish  to  be  heard  on  this 
question? 

Mr.  Pratt  —  Mr.  President,  the  majority  of  the  Committee  on 
State  Finances  and  Taxation  will,  if  they  have  not  already,  introduce 
an  amendment  in  regard  to  taxation  in  this  State.  I  should  like  ta 
have  this  matter  come  up  at  the  same  time  as  the  majority  report 
of  the  Committee  on  State  Finances  and  Taxation,  and  be  consid- 
ered in  connection  with  it.  I,  therefore  move  that  this  report  lie  on 
the  table,  to  be  brought  up  by  myself  in  connection  with  the  major- 
ity report  of  the  committee. 

The  President  put  the  question  on  laying  the  proposed  amend- 
ment on  the  table,  and  it  was  determined  in  the  affirmative. 

The  President  —  The  Secretary  will  call  general  orders. 

The  Secretary  called  the  general  orders  as  follows: 

General  order  No.  2,  introduced  by  Mr.  Roche,  to  amend  article 


August  20.]  CONSTITUTIONAL  CONVENTION.  841 

3  of  the  Constitution,  by  adding  a  new  section,  relative  to  the  grant- 
ing of  pensions  to  any  civil  officer  or  employe. 

Not  moved. 

General  order  No.  4  (printed  No.  381),  introduced  by  Mr.  Hill, 
to  amend  section  5  of  article  2,  relating  to  the  manner  of  elections. 

Not  moved. 

General  order  No.  5  (printed  No.  421),  introduced  by  the  special 
committee,  relative  to  the  transfer  of  land  titles. 

Not  moved. 

General  order  No.  7  (printed  No.  316),  introduced  by  Mr.  Holls, 
to  amend  section  4  of  article  2  of  the  Constitution,  relating  to 
enforcing  the  duty  of  voting. 

Not  moved. 

General  order  No.  25  (printed  No.  392),  introduced  by  Mr. 
McDonough,  to  amend  article  3,  relating  to  the  employment  of 
prisoners. 

Not  moved. 

General  order  No.  8  (printed  No.  317),  introduced  by  Mr.  Lauter- 
bach,  to  amend  article  2,  relative  to  suffrage. 
Not  moved. 

General  order  No.  17  (printed  No.  384),  introduced  by  Mr.  E.  R. 
Brown,  to  amend  article  i,  against  public  officers  riding  on  passes. 
Not  moved*. 

General  order  No.  19  (printed  No.  3^6),  introduced  by  Mr.  Roche, 
to  amend  section  8. 
Not  moved. 

Mr.  E.  R.  Brown  —  Mr.  President,  in  relation  to  general  order 
No.  17,  I  am  prepared  to  move  that,  but  have  been  requested  by 
some  gentlemen  who  desire  to  speak  upon  it,  not  to  move  it  this 
morning,  and  I,  therefore,  move  that  leave  be  granted  to  move  it 
later  in  the  day. 

The  President  —  Mr.  Brown  moves  that  this  general  order  does 
not  lose  its  precedence  for  the  day  by  reason  of  not  being  moved 
now.  If  there  are  no  objections,  it  is  so  ordered. 

General  order  No.  21  (printed  Xo.  388),  introduced  by  Mr.  J. 
Johnson,  relating  to  the  titles  of  bills. 

Not  moved. 

General  order  No.  22  (printed  No.  389),  introduced  by  Mr.  Bar- 
hite,  to  amend  section  6  of  article  i,  giving  the  Legislature  power 
to  pass  certain  laws. 

Not  moved. 


842  REVISED  RECORD.  [Monday, 

General  order  No.  23  (printed  Xo.  390),  introduced  by  Mr.  Roche, 
to  amend  section  13,  article  3,  relative  to  the  passage  of  bills  by  the 
Legislature. 

Not  moved. 

General  order  No.  24  (printed  No.  391),  introduced  by  Mr.  Becker, 
relating  to  grants. 
Not  moved. 

General  order   No.   26  (printed   No.   393),  introduced  by   Mr. 
H.  A.  Clark,  relative  to  the  civil  service. 
Not  moved. 

General  order  No.  27,  introduced  by  the  Committee  on  Corpora- 
tions, as  to  trusts  or  combinations.  Minority  report  of  the  same  on 
general  orders. 

Not  moved. 

General  order  No.  28. 

Not  moved. 

Mr.  Dickey  —  Mr.  President,  I  move  general  order  No.  27. 

Mr.  Burr  —  Mr.  President,  I  would  like  to  say  to  Mr.  Dickey  that 
Mr.  Hawley  requested  this  be  not  moved  until  to-morrow  morning, 
as  he  is  not  present. 

Mr.  Dickey  —  Very  well,  I  withdraw  it. 

General  order  No.  29,  introduced  by  Mr.  Dean,  to  abolish  all 
commissions  of  the  State,  except  such  as  are  composed  of  State 
officers,  and  to  inhibit  the  power  to  create  permanent  commissions, 
and  providing  that  all  public  officials  shall  be  paid  by  the  State. 

Mr.  Dean  moved  that  the  Convention  go  into  Committee  of  the 
Whole  on  general  order  Xo.  29. 

The  President  put  the  question,  and  it  was  determined  in  the 
affirmative. 

The  President  —  The  Chair  will  call  attention  to  the  fact  that 
complaint  has  been  made  by  several  members  that  the  list  of  gen- 
eral orders  was  not  taken  up  each  day  where  it  left  off  the  previous 
day,  so  as  to  give  all  these  later  ones  a  chance  to  be  heard.  The 
rule  provides  that  the  result  of  not  moving  a  general  order  is  simply 
that  it  loses  its  precedence  for  the  day.  If  any  of  these  complaints 
are  to  be  materialized  the  rule  is  at  fault. 

Mr.  Moore  will  take  the  chair. 

Chairman  Moore  —  The  Convention  is  in  Committee  of  the  Whole 
on  general  order  No.  29  (introductory  XTo.  23),  introduced  by  Mr. 
Dean.  The  Secretary  will  read  the  proposed  amendment. 


August  20.]  CONSTITUTIONAL  CONVENTION.  843 

The  Secretary  read  the  proposed  amendment. 

Mr.  Dean  —  Mr.  Chairman,  I  move  to  strike  out  the  enacting 
clause  of  this  proposed  measure. 

The  question  has  been  asked  is  it  advisable  to  abolish  these  com- 
missions; are  they  not  necessary  to  the  scheme  of  government? 
There  are,  I  believe,  fifteen  commissions  in  this  State,  including  the 
State  Board  of  Pharmacy,  and  of  this  number  eleven  have  been 
created  since  1880.  Prior  to  that  time,  with  the  exception  of  those 
created  from  among  the  State  officers,  a  commission  was  almost 
unknown  in  this  State,  and  a  permanent  commission,  involving 
expenditures  to  the  State,  was  almost  without  precedent.  That 
they  are  contrary  to  the  spirit  of  our  institutions,  I  believe,  will,  on 
reflection,  be  conceded.  They  are  not  representative  in  their  mem- 
bership, because  they  are  made  by  appointment;  they  are  not 
judicial  in  their  functions,  because  they  have  no  power  to 
enforce  their  decrees  or  rulings,  and  they  are  not  executive  in  char- 
acter, because  they  have  been  selected  upon  the  theory  that  they 
were  in  some  manner  to  represent  something,  and  have  been  denied 
the  power  to  enforce  anything.  They  are  in  effect  a  confused  and 
useless  jumble  of  representative,  judicial  and  executive  functions, 
without  the  merits,  and  with  all  the  demerits  incident  to  co-ordinate 
branches  of  government.  They  are  not  responsible  to  constitu- 
encies as  representative  bodies;  have  no  character  in  their  quasi- 
judicial  functions,  and,  as  executive  officers,  there  is  too  much  of  a 
division  of  responsibility  to  be  effective,  even  were  they  given  author- 
ity under  the  laws  creating  them.  They  are,  as  a  matter  of  fact, 
the  creatures  of  legislative  cowardice  and  incompetency.  Every 
time  a  popular  clamor  arises  some  member  of  the  Legislature,  lack- 
ing the  courage  or  the  capacity  to  deal  with  the  subject,  proposes 
the  formation  of  a  commission  to  take  charge  of  the  matter,  and 
the  action  having  a  long  line  of  precedence,  and  following  the  lines 
of  least  resistance,  a  commission  is  raised.  To  this  body  is  dele- 
gated just  enough  powers  and  duties  to  keep  it  in  existence  without 
accomplishing  any  solution  of  the  question,  and  drawing  their  pay 
from  the  railroad  corporations,  or  being  paraded  before  the  world 
in  many  cases  as  serving  without  salaries,  a  drain  upon  the  resources 
of  the  State  is  effected  which  few  people  know  anything  about.  I 
call  attention  more  especially  to  the  State  Railroad  Commission, 
because  it  is  the  most  flagrant  of  the  abuses  of  this  commission- 
creating  era.  This  commission  was  created  in  1883,  under  a  statute 
which  allowed  one  of  the  three  members  of  the  original  commission 
to  be  chosen,  not  by  the  Governor  or  the  Legislature,  nor  yet  by 
the  people,  but  by  the  Board  of  Trade,  the  Chamber  of  Commerce 


844  REVISED  RECORD.  [Monday, 

and  a  labor  organization  in  the  city  of  New  York.  It  was  created 
to  silence  the  clamor  of  labor  organizations  against  the  railroad 
companies,  and  to  still  further  cater  to  this  sentiment,  it  was  enacted 
that  the  companies  which  were  to  be  regulated  by  this  commission 
were  to  be  called  upon  to  pay  the  expenses  of  this  regulation,  each 
of  the  three  commissioners  being  paid  a  salary  of  $8,000  per  year. 
The  commission  has  now  been  in  existence  for  eleven  years,  with 
what  results,  in  the  matter  of  regulating  the  railroads,  is  known  to 
all,  and  the  report  of  the  Comptroller  shows  the  result  of  the  insinu- 
ating policy  of  these  commissions  in  the  following  audits  of  the 
expenses  of  the  office  during  that  time.  Having  three  members, 
each  anxious  to  have  an  equal  amount  of  patronage  to  distribute 
among  his  friends,  and  the  board,  collectively,  having  no  fear  of  the 
people,  who,  not  being  called  upon  directly,  to  pay  the  salaries  and 
expenses,  are  indifferent  to  results,  the  cost  has  been  kept  at  a  sur- 
prisingly large  figure,  considering  the  character  of  the  services 
rendered  to  the  people.  Here  is  what  the  report  of  the  Comptroller 
shows,  in  Document  No.  20,  now  before  the  Conversion : 

"  State  Railroad  Commissions.  Salary  and  expenses  of  the  office 
-$25,285.36  in  1883,  $66,225.37  in  1884,  $65,023.50  in  1885, 
$68,509.25  in  1886,  $62,443.25  in  1887,  $52,434.55  in  1888,  $53,987*07 
in  1889,  $52,024.32  in  1890,  $67,660.66  in  1891,  $56,609.10  in  1892, 
$56,405.56  in  1893,  making  a  total  of  $626,553.99  in  the  eleven 
years. 

The  disposition  to  encroach  upon  the  resources  of  the  State  had 
become  so  flagrant  that  the  Legislature  of  1892  enacted  that  the 
total  expenses  of  the  office  should  not  exceed  $50,000  annually. 
This  irresponsible  body,  created  nominally  in  the  interests  of  the 
people,  has  been  given  most  extraordinary  powers,  which  properly 
belong  to  the  Legislature.  In  fact,  the  Railroad  Commission  has 
been  given  authority  to  do  things  which  the  Legislature  would  not 
dare  to  do  in  the  first  instance. 

Mr.  Peck  —  Mr.  President,  I  would  like  an  opportunity  to  ask  the 
gentleman  a  question.  I  would  like  to  ask  the  gentleman  who  pays 
the  expenses  of  the  Railroad  Commission? 

Mr.  Dean  —  The  railroads  of  the  State  pay  them. 

Mr.  Peck  —  And  the  purpose  of  your  amendment  is  to  take  away 
that  privilege? 

Mr.  Dean  —  Yes,  sir;  they  will  simply  be  liable  to  taxation,  and 
not  to  special  assessments  for  that  purpose,  so  that  the  Railroad  Com- 
missioners shall  know  that  they  are  getting  their  pay  from  the  State, 
instead  of  from  the  railroads. 


August  20.]  CONSTITUTIONAL  CONVENTION.  845 

Mr.  Peck  —  You  don't  propose  to  do  away  with  the  commission? 

Mr.  Dean  —  The  commission  is  to  be  done  away  with,  providing 
the  Legislature  does  not  re-enact  the  law. 

Mr.  Dean  (continuing)  —  A  case  in  point  is  found  in  section  80  of 
the  railroad  law,  which  reads  as  follows :  "  No  railroad  corporation 
or  corporations  owning  or  operating  railroads  whose  roads  run  on 
parallel  or  competing  lines,  except  street  surface  railroad  corpora- 
tions, shall  merge  or  consolidate,  or  enter  into  any  contract  for  the 
use  of  their  respective  roads,  or  lease  the  same,  the  one  to  the  other, 
unless  the  Board  of  Railroad  Commissioners  of  the  State,  or  a 
majority  of  such  board,  shall  consent  thereto." 

Mr.  McDonough  —  Mr.  President,  would  your  proposed  amend- 
ment include  the  Superintendent  of  Insurance? 

•Mr.  Dean  —  The  clause  referring  to  the  payment  of  salaries  would 
certainly  refer  to  the  insurance  and  the  banking  department.  I 
think  it  is  a  wrong  theory  to  pay  salaries  out  of  any  assessment  upon 
corporations.  The  State  of  New  York  ought  to  pay  its  own 
salaries. 

Mr.  Dean  (continuing)  —  It  is  in  the  power  of  this  commission, 
appointed,  as  every  intelligent  man  knows,  by  railroad  influences, 
and  receiving  its  salary  and  compensation  from  sueh  railroads,  to 
allow  that  which  has  been  declared  by  statute  against  public  policy. 
There  are  other  important  instances  in  which  legislative  powers 
have  been  delegated  to  this  commission,  and  it  can  scarcely  be 
doubted  that  this  is  equivalent  to  granting  such  rights  as  the  rail- 
roads may  require.  Certainly  there  is  no  man  in  this  committee 
who,  if  he  was  receiving  his  salary  from  the  railroads,  would  not 
feel  himself  morally  obligated  to  do  that  which  these  railroads  desired 
when  he  was  given  the  right  so  to  do  by  the  State,  which  nominally 
employed  him.  I  certainly  should  do  so;  I  should  feel  it  my 
duty  to  do  so.  Independent,  however,  of  this  consideration,  is  it 
dignified  and  decent  for  the  great  State  of  New  York  to  lend  itself 
to  this  cheap  demagogism;  is  it  consistent  with  the  attitude  of  a 
sovereign  State  to  create  offices  and  allow  its  corporate  creatures, 
having  selfish  ends  to  serve,  to  pay  their  salaries?  I  cannot  under- 
stand how  any  self-respecting  man,  who  loves  his  State,  can  consent 
to  this  prostitution  of  public  office.  If  these  officers  are  performing 
a  service  for  the  State,  we  ought  to  be  great  enough  and  grand 
enough  to  pay  for  it,  and  if  the  service  performed  is  that  of  the  rail- 
road corporations,  then  we  have  no  right  to  lend  them  the  dignity 
of  the  sanction  of  the  State  to  their  servants  and  employes.  Looked 
at  in  any  light  you  ma.y  choose,  the  picture  is  one  to  disgust  any 


846  REVISED  RECORD.  [Monday, 

right  thinking  man,  and  I  cannot  believe  this  committee,  or  this 
Convention,  in  a  full  knowledge  of  the  facts,  will  consent  to  a  con- 
tinuance of  a  policy  which  can  have  no  other  result  than  the  serving 
of  private  ends  and  the  debauchery  of  legislation  and  the  public 
conscience. 

Then  there  is  the  Commission  of  Fisheries.  This  commission 
serves  without  salaries,  and  might  be  supposed  to  be  a  very  innocent 
institution,  but  the  report  of  the  Comptroller,  in  Document  No.  20, 
informs  us  that  it  has  cost  the  State  the  following  sums: 

Game  and  Fish  Protectors  —  $306.70  in  1880,  $5,536.82  in  1881, 
$6.102.70  in  1882,  $6,084.71  in  1883,  $9,938.42  in  1884,  $11,205.67  in 
1885,  $12,025.86  in  1886,  $10,058.12  in  1887,  $11,882.76  in  1888, 
$16,190.35  in  1889,  $17^57-70  in  1890,  $16,409.04  in  1891,  $18,492.50 
in  1892,  $23,958.65  in  1893,  making  a  total  of  $165,290  in  the  thirteen 
years. 

Then  there  is  the  Civil  Service  Commission,  which  shows  the 
same  progressive  tendency  in  respect  to  patronage  and  expenses 
which  we  find  in  the  other  commissions,  and  which  the  Comptroller 
tells  us  are  as  follows: 

Civil  Service  Commission  —  $3,420.37  in  1883,  $14,331.41  in  1884, 
$14,131  in  1885,  $15,501.66  in  1886,  $18,052.17  in  1887,  $17,136.28  in 
1888,  $14,933.61  in  1889,  $16,391.88  in  1890,  $15,805.15  in  1891, 
$17,708.63  in  1892,  $17,209  in  1893,  making  a  total  of  $164,691.16 
in  ten  years. 

Then  there  is  another  of  those  innocent  appearing  commissions 
without  salaries.  This  is  the  commission  which  has  charge  of  the 
Niagara  reservation,  and  its  expenses  are  reported  as  follows  by 
the  Comptroller: 

Niagara  Reservation — $1,027.50  in  1883,  $3,243.84  in  1884, 
$25,143.76  in  1885,  $3,000  in  1886,  no  report  for  1887,  $20,000  in 
1888,  $20,000  in  1889,  $36,214.82  in  1890,  $25,240,62  in  1891, 
$38,263.23  in  1892,  $41,010.71  in  1893,  making  a  total  in  eleven 
years  of  $213,004.08. 

It  is  not  to  be  supposed,  of  course,  that  some  of  these  expenses 
were  not  entirely  legitimate,  but  there  are  some  remarkable  charges 
in  the  expenditures,  and,  judging  from  the  manner  in  which  irre- 
sponsible officers  conduct  affairs,  it  is  only  reasonable  to  suppose 
that  greater  economy  might  be  exercised  if  the  people  were  allowed 
to  employ  and  pay  their  public  servants  for  whatever  of  services 
they  may  be  able  to  render. 

The  Forestry  Commission  serves  without  salaries,  but  it  entails 
a  considerable  expense,  as  will  be  seen  by  the  Comptroller's  report 


August  20.]  CONSTITUTIONAL  CONVENTION.  847 

as  to  bills  audited  in  its  behalf  since  its  creation  in  1884.  The  figures 
are  as  follows: 

Forestry  Commission  —  $1,928.70  in  1884,  $2,954.22  in  1885, 
$16,694.16  in  1886,  $24,847.22  in  1887,  $24,686.86  in  1888,  $27,070.14 
in  1889,  $26,793.12  in  1890,  $38,478.55  in  1891,  $36,299.04  in  1892, 
$45,218.01  in  1893,  making  a  total  of  $244,970.02  in  ten  years. 

The  State  Board  of  Mediation  and  Arbitration,  than  which  a  more 
useless  aggregation  does  not  exist,  has  cost  the  State  the  following 
sums,  as  shown  by  the  Comptroller's  report: 

The  State  Board  of  Mediation  and  Arbitration — $3,685.25  in  1886, 
$14,552.83  in  1887,  $18,055.71  in  1888,  $16,325.11  in  1889,  $17,823.28 
in  1890,  $15,093.91  in  1891,  $16,399.89  in  1892,  $15,537.40  in  1893, 
making  a  total  of  $117,487.44  in  eight  years. 

I  will  say  here  that  it  has  been  stated  that  in  some  of  these  com- 
missions, part  of  this  expense  has  been  due  to  the  publication  of  the 
annual  report.  That  is  not  true  in  regard  to  all  of  them.  That  is 
not  claimed  by  all  of  them.  In  reference  to  the  Railroad  Commis- 
sion I  think  that  is  true. 

The  Commission  in  Lunacy,  all  of  whose  duties  could  be  much 
better  discharged  by  a  single  individual,  shows  the  same  spirit  of 
progress  in  respect  to  its  expenditures.  In  1889  it  cost  the  State 
$4,217.79.  In  1890  this  had  increased  to  $16,146.85.  In  1891  it 
had  reached  $20,895.33.  It  feN  or?  to  $I9»3I°-95  in  1892,  and  to 
$19,270.31  in  1893,  and  had  aggregated  the  sum  of  $79,598.23  in 
the  five  years  of  its  existence. 

By  the  same  report  from  which  these  figures  are  gleaned,  it  is 
stated  that  the  new  offices  created  since  1890,  the  most  of  which 
are  commissions,  cost  in  1893  a  total  of  $1,027,654.31,  making  a 
grand  total  for  the  thirteen  years  of  $6,847,892.72.  These  seven 
leading  commissions  alone,  the  Game  and  Fish  Protectors,  the  Civil 
Service  Commission,  the  Niagara  Reservation  Commission,  the 
Commission  in  Lunacy,  the  Board  of  Arbitration,  the  Forestry 
Commission  and  the  Railroad  Commission  aggregate  an  annual 
charge  of  $218,364,  and  I  submit  that  fully  one-half  of  this  expendi- 
ture has  no  practical  utility  beyond  affording  a  place  for  someone 
at  the  expense  of  the  taxpayers  of  the  State,  or,  what  amounts  to 
the  same  thing  in  the  long  run,  out  of  the  treasury  of  the  private 
corporations. 

I  think  it  will  be  conceded  that  any  system  of  offices  which  per- 
mits of  the  rapid  and  continual  increase  in  expenditures  shown  by 
the  figures  which  I  have  quoted,  is  not  calculated  to  build  up  the 
public  service,  or  to  produce  an  economical  administration  of  public 
affairs.  The  proposal  under  consideration  does  not  -contemplate 


REVISED  RECORD.  [Monday, 

crippling  the  public  service  in  any  degree;  it  does  not  propose  to 
take  from  the  Legislature  the  legitimate  power  to  create  offices 
which  may  from  time  to  time  become  necessary.  It  simply  abolishes 
the  commisions  which  are  at  present  in  being,  except  those  created 
of  elective  State  officers,  and  leaves  to  the  Legislature  the  power  and 
the  duty  to  create  responsible  public  officials  in  the  place  of  irre- 
sponsible commissions,  at  the  same  time  insisting  that  the  State 
shall  not  enter  into  partnership  with  any  individual,  association  or 
corporation  in  the  payment  of  its  public  officials  for  their  services. 
This  is  not  a  radical  innovation;  it  is  simply  a  return  to  correct,  first 
principles  in  government,  and  there  can  be  no  higher  duty  than  to 
preserve  the  highest  dignity  and  the  highest  utility  for  our  public 
servants,  a  condition  which  cannot  exist  under  the  rule  of  irresponsi- 
ble commissions. 

I  desire  to  state  at  this  time  that  the  report  of  the  Committee  on 
Legislative  Powers  and  Duties,  which  is  now  before  us,  is  a  con- 
siderable modification  of  the  original  proposition.  It  does  not  do 
away  entirely  with  commissions.  It  simply  inhibits  the  Legislature 
the  power  to  create  commissions  for  more  than  three  years.  Those 
of  the  commissions  that  have  demonstrated  the  needs  of  their  con- 
tinuance are  to  be  re-created  every  three  years,  thus  leaving  it  in 
the  power  of  the  Legislature  to  create  such  commissions  as  may  be 
proper  to  carry  on  the  business  of  the  State,  just  as  it  is  at  present. 
It  puts  the  seal  of  condemnation  on  commissions,  in  the  hope  that 
the  Legislature  will  create  elective  officers  or  put  these  bureaus  in 
the  control  of  the  several  elective  departments  of  the  State. 

Mr.  Peck  —  May  I  ask  the  gentleman  a  question?  Mr.  Dean,  1 
would  like  to  know  whether  you  understand  that  the  Legislature 
cannot  now,  at  any  time,  put  an  end  to  any  commission  in  existence? 

Mr.  Dean  —  I  think  it  can. 

Mr.  Peck  —  So  that  your  proposition  would  be  to  extend  them 
for  three  years,  instead  of  at  the  pleasure  of  the  Legislature? 

Mr.  Dean  —  No,  sir. 

Mr.  Peck  —  What  is  the  effect,  then? 

Mr.  Dean  —  The  effect  is  to  do  away  with  all  commissions  at  the 
end  of  1895,  and  then  it  inhibits  the  power  of  the  Legislature  to 
create  any  commission  for  more  than  three  years. 

Mr.  Peck  —  Yes,  but  it  is  at  the  pleasure  of  the  Legislature  now 
to  abolish  them  in  less  than  three  years. 

Mr.  Dean  —  The  creation  of  these  commissions  by  the  Legislature 
is  an  exceedingly  vicious  and  cowardly  practice,  and  the  Legislature 


August  20.]  CONSTITUTIONAL  CONVENTION.  849 

has  avoided  its  duty  to  the  public  in  this  matter.  Mr.  President,  I 
withdraw  my  motion  to  strike  out  the  enacting  clause. 

Mr.  Veeder — Mr.  Chairman,  I  offer  the  following  amendment: 
Insert  after  the  word  "  commissions/'  first  line,  the  words  "  of  which 
a  Democrat  may  be  a  member." 

Mr.  Chairman,  my  first  recollection  of  the  introduction  of  com- 
missions was  by  the  Republicans  in  the  State  Legislature,  and  the 
encouragement  and  continuation  of  that  practice  was  by  the  Repub- 
lican party.  They  began  with  the  Metropolitan  district  police  bill, 
and  they  have  continued  it  wherever  they  had  an  opportunity,  and 
until  this  clay  I  have  not  heard  a  Republican  raise  his  voice  in  favor 
of  their  abolition.  I  confess,  sir,  that  personally  I  have  never  been 
in  favor  of  commissions.  I  believed,  and  still  believe,  that,  if  the 
administration  of  the  affairs  of  the  State  is  necessarily  to  be  dis- 
charged by  any  particular  officer,  the  people  are  quite  competent 
to  elect  those  officers,  and  if  I  had  my  way,  I  assure  you,  that  the 
people  would  elect  all  their  servants  and  for  a  reasonable  term. 

Now,  sir,  what  is  the  use  of  disguising  the  intention  of  this  ireas- 
ure.  It  is  purely  and  simply  a  piece  of  legislation  which  marly  of 
us  have  been  objecting  to  as  occurring  in  this  Convention.  There 
is  not  a  commission  in  existence  to-day  that  is  constitutionalized 
that  is  continued.  Now,  what  is  the  effect  of  this  amendment?  It 
will  be  to  abolish  all  the  existing  commissions  authorized  by  consti- 
tutional provision,  the  creation  of  new  commissions,  and  limiting 
only  their  term  of  office.  Why  be  timid  about  it?  Why  not  say, 
because  the  Legislature,  which  meets  a  few  days  after  this  Constitu- 
tion is  to  take  effect,  the  incoming  Legislature,  is  to  go  on  and 
make  new  commissions  to  supersede  the  old  ones?  Now,  to  make 
it  sure,  so  that  it  may  not  mislead  any  Democrat,  why  not  say  so, 
and  then  they  may  stop.  They  need  not  abolish  any  commission 
where  they  find  any  Republicans  in  it.  All  they  need  do  is  to 
abolish  the  commissions  in  which  there  are  Democrats.  I  think  the 
House  ought  unanimously  to  adopt  my  amendment. 

Mr.  Maybee  —  Mr.  Chairman,  I  hope  that  the  proposed  constitu- 
tional amendment  will  not  receive  favorable  consideration.  I 
opposed  it  in  committee  and  I  shall  oppose  it  here.  There  is  no 
doubt  that  some  commissions  have  been  created  by  the  State  that 
are  of  no  practical  benefit,  and  some  of  them  have  been  created  as 
a  part  of  a  political  machine;  but  a  sweeping  amendment  like  this, 
which  should  suddenly  wipe  out  of  existence  all  commissions,  cer- 
tainly seems  to  me  not  to  be  for  the  best  interests  of  the  State. 
There  are  commissions  in  the  State  that  do  benefit  the  people.  The 
54 


850  REVISED  RECORD.  [Monday, 

Dairy  Commission  is  certainly  a  vast  benefit  to  the  agricultural 
population  of  the  State. 

The  Railroad  Commission  serves  a  useful  purpose.  The  Com- 
mission of  Claims,  of  which  a  gentleman  residing  in  my  county  is 
at  present  a  commissioner,  has  saved  the  people  of  the  State  untold 
thousands  in  the  operation  of  the  commission.  Before  the  commis- 
sion was  created  these  claims  were  tried  in  the  ordinary  way,  except 
those  that  were  submitted  to  the  Legislature.  Special  attorneys 
were  employed  throughout  the  State  to  defend  these  claims.  At 
present  one  deputy  attorney-general  attends  to  all  these  claims  for 
the  State  at  a  very  small  salary.  Where  it  costs  the  State  now  one 
thousand  dollars,  it  formerly  cost  the  State  tens  of  thousands  of  dol- 
lars to  defend  it  against  claimants  that  presented  claims.  Now, 
that  commission  has  been  of  practical  benefit.  It  would  be  a 
great  public  misfortune  to  abolish  the  Dairy  Commission.  It  would 
be  a  great  public  misfortune  to  abolish  the  Railroad  Commission. 
Any  sweeping  amendment  that  at  one  blow  wipes  out  all  of  those 
commissions  is  not  a  wise  measure  for  this  Constitutional  Conven- 
tion to  adopt.  Now,  I  cannot  see  any  objection  to  having  the 
expenses  of  the  Railroad  Commission  paid  by  the  railroad  corpora- 
tions. Where  is  that  objectionable?  It  saves  just  so  much  money 
to  the  taxpayers  that  would  otherwise  come  out  of  their  pockets. 
It  certainly  does  not  leave  the  commission  under  any  obligations 
to  the  railroad  corporations.  Where  is  the  objection  to  it,  when  it 
saves  just  so  much  money  to  the  people  of  the  State?  Now,  these 
functions  that  are  carried  on  by  these  commissions  must  be  carried 
on  in  some  way.  I  understand  the  proposition  of  the  mover  of  this 
amendment  originally  was  that  they  should  be  composed  of  elective 
officers,  and  that  is  the  purpose  now  behind  this  amendment.  If 
that  purpose  is  carried  out  we  have  a  great  number  of  additional 
officers  to  be  elected  by  the  people.  I  say  we  have  enough  elective 
officers  now.  The  list  of  elective  officers  to  be  voted  for  by  the 
electors  of  this  State  is  already  sufficiently  long  and  sufficiently 
numerous.  We  ought  not  to  add  scores  or  dozens  to  the  list  to  be 
elected  by  the  people.  It  might  be  well  to  abolish  some  of  these 
commissions  by  legislative  enactment.  There  is  no  doubt  as  to  the 
wisdom  of  that  course.  It  is  said  that  they  were  formerly  used  as 
political  machines  entirely,  and  by  a  former  Governor,  who  is  no\v 
in  the  United  States  Senate,  and  who  for  months  has  been  engaged 
in  the  laudable  work  of  upholding  the  hands  of  the  President. 
I  say  that  the  abolishing  of  all  these  commissions  would  not  be 
for  the  best  interests  of  the  people.  We  ought  to  separate  the  tares 
from  the  wheat,  and  if  any  of  them  do  not  serve  a  useful  purpose, 


August  20.]  CONSTITUTIONAL  CONVENTION.  851 

let  the  Legislature  abolish  them,  but  a  sweeping  amendment  that 
wipes  them  all  out  at  one  blow  is  not  a  proposition  that  ought  to 
receive  the  favorable  consideration  of  this  Convention. 

Mr.  Dickey  —  Mr.  Chairman,  as  the  Republican  party  on  the  first 
of  January  next  is  to  take  charge  of  the  government  of  this  State, 
both  in  the  Legislature  and  the  Governor,  and,  if  the  only  Demo- 
crats who  will  then  be  left  in  office  will  be  the  few  who  are  on  com- 
missions and  who  will  hold  over,  I  think  we  had  better  let  them 
remain  in  office. 

Mr.  Hotchkiss  —  Will  the  gentleman  give  way?  Is  this  con- 
dition that  the  gentleman  refers  to  to  be  brought  about  by  any 
constitutional  amendment? 

Mr.  Dickey  —  The  gentleman  does  not  understand  me.  I  am 
trying  to  leave  a  few  Democrats  in  office  at  that  time,  and,  there- 
fore, am  opposed  to  this  amendment. 

The  Chairman  —  The  question  is  on  Mr.  Veeder's  amendment. 

Mr.  Dean  —  Mr.  Chairman,  I  desire  to  say  in  reply  to  Mr.  May- 
bee's  argument  in  support  of  paying  public  officials  by  assessing 
private  corporations,  the  expense  of  this  Railroad  Commission  is 
paid  by  the  railroads,  and,  at  a  hearing  before  the  committee  which 
has  reported  this  amendment,  we  were  practically  told  that  this  is  a 
matter  which  did  not  concern  the  people,  because  its  work  is  done 
in  common  with  the  railroads.  I  desire  to  call  attention  to  the  fact 
that  these  commissioners  are  paid  $8,000  a  year  each,  including 
transportation. 

The  Chairman  —  The  question  is  on  Mr.  Veeder's  amendment. 
The  amendment  was  lost. 

The  Chairman  —  The  question  is  now  on  the  original  motion  of 
Mr.  Dean. 

Mr.  Dean  —  That  motion  was  withdrawn. 

Mr.  Veeder  —  Mr.  Chairman,  I  desire  to  move  to  strike  out  lines 
3,  4,  5,  6  and  7  and  down  to  and  including  the  word  "  corporation." 

The  Chairman  —  Will  Mr.  Veeder  please  send  that  up  in  writing? 

Mr.  Veeder  —  I  cannot,  any  more  than  I  have  said,  except  to 
draw  my  pen  through  it.  It  is  a  motion  to  strike  out. 

Now,  Mr.  Chairman,  I  think  if  this  proposition  is  to  prevail,  it 
will  read  as  follows :  "  All  State  commissions  shall  expire  on  the 
3Oth  day  of  September,  1895.  This  section  shall  not,  however,  apply 
to  commissions  composed  of  elective  officers  of  the  State  nor  shall 
it  prohibit  the  creation  of  a  Board  of  Claims."  I  do  not  know  why 
that  is  there,  but,  however,  we  will  let  that  stand.  I  think,  sir,  that 


852  REVISED  RECORD.  [Monday, 

we  might  just  as  well  come  right  to  the  front  and  be  fair  and  square. 
The  proposition  is  simply  one  to  abolish  the  present  existing  com- 
missions, and  is  purely  and  simply  a  piece  of  partisan  legislation, 
sought  to  be  injected  into  the  Constitution.  Let  us  have  the  man- 
hood to  stand  up  and  vote  for  the  main  proposition  to  abolish  the 
office  of  every  department  that  may  possibly  have  a  Democrat  in  it 
to-day.  Now,  these  prophecies  that  we  hear  from  Orange  and 
down  the  river  are  like  a  great  many  that  have  been  heard  before. 
You  can  take  it  with  a  great  deal  of  allowance.  If  the  people  of 
the  State  of  New  York  will  approve  of  a  proposition,  with  this 
clean-cut  evidence  of  partisan  politics  in  it,  I  am  satisfied,  as  a 
Democrat,  that  our  party  shall  sustain  defeat.  If  there  is  manhood 
in  the  people,  there  is  no  doubt  about  the  victory  of  the  Demo- 
cratic party  next  fall,  if  you  pass  measures  simply  because  you  are 
in  the  majority  in  this  Convention  and  want  to  take  the  chances  that 
the  people  will  be  humbugged. 

Mr.  Jesse  Johnson  —  Mr.  Chairman,  I  deprecate  the  method  of 
this  discussion.  I  understand  that  we  are  in  Committee  of  the 
Whole  to  perfect  great  constitutional  measures;  that  it  is  regarded 
in  this  Convention  as  tlie  duty  of  every  delegate  to  gather  what 
there  is  that  is  wise  and  proper  and  to  eliminate  that,  if  anything 
there  be,  which  is  improper.  I  was  about  to  introduce  an  amend- 
ment that  the  portion  which  my  colleague  from  Kings  would  strike 
out  be  retained,  and  that  all  else  be  stricken  out.  There  is  much 
of  value  in  those  lines  which  he  would  strike  out.  There  is  in 
them  the  proposition  that  no  Railroad  Commissioner  shall  -be  paid 
by  the  railroads.  Is  that  anti-democratic?  Is  that  aimed  at  the 
party  that  my  friend  would  represent?  There  is  in  it  a  provision 
shortening  the  terms  of  commissioners  and  making  earlier  and  more 
frequent  power  of  appointment.  I  believe,  sir,  that  that  is  wise. 
But,  sir,  whenever  any  amendment  is  introduced  containing  that 
which,  even  if  not  wise,  should,  nevertheless,  command  the  thought- 
ful attention  of  every  member  of  this  Convention  —  to  immediately 
start  the  cry  —  and  it  has  been  started  before ;  this  is  no  initial  move- 
ment—  to  immediately  start  the  cry  that  it  is  partisan,  that  it  is 
legislating  for  party  —  unless  that  proposition  is  sustained  in  fact ; 
unless  the  context  of  an  amendment  shows  it  —  is  a  slander  on  this 
Convention.  Mr.  Chairman,  why  shall  we  say  that  a  proposition 
that  all  commissions  shall  expire  at  the  end  of  the  year  yet  to  follow, 
nearly  eighteen  months  from  now  —  why  shall  it  be  asserted  gravely 
that  that  is  aimed  at  one  particular  party?  I  know  not  what  the 
events  of  the  future  may  be,  but  I  assert,  sir,  that  a  proposition  that 
these  long  terms  shall  be  taken  away,  that  the  work  of  the  State 


August  20.]  CONSTITUTIONAL  CONVENTION.  853 

shall  not  be  paid  by  assessment  on  the  parties  to  be  controlled,  is 
right  in  principle,  and  it  is  much  better  to  perfect  these  measures 
in  fair  consideration  than  to  raise  the  cry  of  party  whenever  a  noun 
and  a  verb  are  fastened  together  in  an  amendment  here. 

Mr.  Veeder  —  Mr.  Chairman,  will  the  gentleman  allow  a 
question? 

The  Chairman  —  Will  the  gentleman  give  way  for  a  question? 

Mr.  Johnson  —  Certainly. 

Mr.  Veeder  —  If  the  gentleman  is  sincere,  and  says  that  he  will 
propose  abolishing  the  portion  of  that  section  that  I  move  to  strike 
out,  and  move  to  strike  the  rest  of  the  section  out,  as  he  states,  I 
withdraw  my  motion,  to  give  him  the  opportunity  to  make  his 
motion  and  save  time. 

Mr.  Johnson  —  Mr.  Chairman,  I  move  to  strike  out  all  before 
commencing  with  line  three. 

The  Chairman  —  Does  Mr.  Veeder  withdraw  his  motion? 

Mr.  Veeder  —  Wait  till  I  hear  the  gentleman's  motion.  I  might 
be  mistaken.  I  might  have  misunderstood  him. 

Mr.  Johnson  —  I  said  my  motion  would  be,  sir,  to  strike  out  all 
before  line  three;  to  strike  out  all  after  the  word  — 

Mr.  Veeder  —  ''  Corporation,"  in  line  seven? 

Mr.  Johnson  —  To  strike  out  all  before  line  three.  The  saving 
clause  after  line  seven,  I  would  not  strike  out,  which  is  obviously 
right. 

Mr.  Veeder  —  Then  I  understand  that  he  is  willing  to  strike  out 
lines  three,  four,  five  and  six  and  the  part  of  the  word  "  citation  " 
and  "  or  corporation  "  in  line  seven? 

Mr.  Johnson  —  No,  sir;  that  is  what  I  desire  to  retain. 

Mr.  Veeder  —  No;  to  save  that  part  of  the  word  "  association  " 
and  strike  that  out,  and  the  words,  "  or  corporations,"  in  line  seven. 

Mr.  Johnson  —  I  would  strike  out  the  first  two  lines. 

Mr.  Veeder  —  Then  I  cannot  withdraw  my  motion.  I  was  afraid 
of  that;  I  was  afraid  the  gentleman  would  not  do  it. 

Mr.  Johnson  —  The  statement  made  by  the  gentleman  was  this, 
Mr.  Chairman:  That  the  proposition  to  abolish  all  the  present  com- 
missions was  partisan  and  aimed  at  the  Democratic  party;  that  it 
was  not  in  the  interest  of  the  people,  but  of  a  party,  and  so  con- 
cocted and  presented.  My  thought  was  this  —  and  he  brought  me 
to  it  —  that  the  two  lines  which  could  give  it  that  construction 
should  be  stricken  out.  Sir,  if  those  were  stricken  out,  it  would 


854  REVISED  RECORD.  [Monday, 

strike  out  the  objection  on  which  his  speech  hung,  and  would  prac- 
tically make  his  speech  useless  and  inapplicable.  Having  offered 
to  strike  that  out,  that  on  which  the  claim  of  partisanship  was 
made,  and  that  offer  being  refused,  I  have  the  right  to  insist  that 
the  claim  of  partisanship  is  not  well  founded. 

Mr.  Lauterbach  —  Mr.  Chairman,  I  do  not  know  upon  what  par- 
ticular grievance  this  proposed  constitutional  amendment  is  founded. 
Legislative  commissions  have  done  admirable  work  to  my  knowl- 
edge, and  to  the  knowledge  of  every  member  of  the  Convention, 
during  the  last  decade.  I  have  in  mind  one  commission  especially, 
the  board  of  electrical  control  in  the  city  of  New  York.  That  has 
succeeded,  in  spite  of  the  opposition  of  all  the  corporations  using 
electricity,  in  ridding  the  city  of  New  York  of  miles  of  poles  and 
wires,  and  rendering  the  city  infinitely  more  aesthetic  than  it  was 
before  the  work  of  the  commission  was  inaugurated.  The  effect 
of  this  amendment  would  be  to  repeal  the  existence  of  the  personnel 
of  the  commission  at  all  events;  and  if  the  same  strenuous  opposi- 
tion was  made  by  the  telegraph  and  telephone  companies  to  the 
creation  of  a  new  commission  that  was  made  during  the  five  or  six 
years  of  diligent  battle  that  was  waged  in  order  to  secure  its  appoint- 
ment, there  would  never  be  a  reappointment  of  the  commission,  and 
the  spectacle  would  be  presented  that  the  streets  of  the  city  of  New 
York,  now  absolutely  cleared  of  poles  and  wires,  and  of  the  annoy- 
ance and  nuisance  of  telegraph  poles  and  telegraph  wires,  would 
again  become  burdened  with  them.  The  whole  subway  system  of 
New  York  would  be  imperiled  if  this  amendment  were  to  pass.  So 
far  as  the  railroad  commission  is  concerned,  I  believe  it  is  composed 
of  two  Democrats  and  one  conservative,  Mr.  Rickard.  I  have  never 
heard  of  any  criticism  in  respect  to  that  commission.  Their  action 
has  been  fair,  and  their  administration  of  very  delicate  questions  has 
been  the  best;  and  no  one  from  a  partisan  standpoint  has  been  able 
to  make  any  criticism,  and  no  one  from  a  corporation  standpoint  has 
been  able  to  say  one  word  against  them;  and  this  amendment  is 
proposed  without  any  earthly  occasion  for  its  adoption,  to  wipe  out 
that  commission,  and  leave  it  to  the  Legislature  to  make  political 
capital,  which  would  be  a  great  injustice.  There  is  one  atom  of 
sense  in  the  proposed  amendment.  It  does  seem  to  be  improper 
that  the  corporations  that  are  being  supervised,  over  which  there  is 
a  surveillance  by  officers  of  the  State,  should  be  the  ones  to  pay  the 
salaries  of  those  officers;  but  upon  inspection  even  that  objection 
against  the  existing  system  must  pass  away.  The  corporations  do 
not  pay  this  money  voluntarily;  it  is  not  a  matter  of  whim  or  caprice 
on  their  part  to  pay  it  or  not,  as  they  desire;  there  is  nothing  discre- 


August  20.]  CONSTITUTIONAL  CONVENTION.  855 

tionary  about  it.  On  the  contrary  both  the  railroad  corporations  in 
the  one  case  and  the  telegraph  and  telephone  companies  in  the 
other  fought  most  strenuously  against  the  provision  of  the  law  that 
saddled  them,  and  not  the  people  of  the  State  of  New  York,  with  the 
burden  of  supporting  the  commissions,  the  necessity  for  the  exist- 
ence of  which  arose  from  the  abuses  that  these  corporations  them- 
selves suffered  to  exist.  And  so,  on  reflection,  it  will  be  found  that 
the  theory  that  these  corporations  should  not  pay  for  the  support 
of  the  officers  who  are  appointed  to  supervise  them  passes  away; 
because,  practically,  it  is  an  involuntary  payment;  it  is  subjecting 
them  to  'a  burden  of  which  they  ought  to  feel  the  justice  of  the 
imposition,  because  they  created  the  necessity  for  the  organization 
of  these  commissions.  Now,  if  there  is  anything  political  in  this 
amendment,  I  do  not  know  it.  So  far  as  its  practical  features  are 
concerned,  I  think  it  would  create  useless  trouble.  It  would  create 
a  situation  of  affairs  in  which  corporations  that  have  been  brought 
to  book,  and  against  whom  there  have  been  most  salutary  checks 
established,  shall  be  relieved  of  burdens  which  they  resent,  and  I  can 
hardly  imagine  any  occasion  for  the  enactment  of  such  an  amend- 
ment except  to  say  to  the  great  corporations  of  the  State  of  New 
York,  "  We  are  going  to  give  you,  at  the  next  session  of  the  Legis- 
lature, an  opportunity  to  prevent  the  re-enactment  of  laws  that  sub- 
ject you  to  these  burdens  which  you  have  resented,  and  to  make 
you  again  free  to  do  as  you  please  in  respect  to  the  change  of  motive 
power  of  railways  in  respect  of  the  use  of  streets  for  telegraph  and 
telephone  purposes,  and  in  respect  of  the  thousands  of  other  misuses 
that  corporations  have  been  accused  of  so  justly."  I  think  it  would 
be  a  misfortune  greatly  to  be  regretted  if  this  amendment  in  any 
form,  whether  it  is  suggested  by  partisan  or  non-partisan  reasons, 
should  prevail  for  a  moment,  either  with  or  without  amendment. 
There  is  no  abuse  which  this  amendment  is  intended  to  cure;  there 
is  every  reason  why  the  commissions  that  have  made  the  perfect 
record  that  has  been  made  should  be  permitted  to  exist,  subject  to 
the  legislative  regulation,  which  has  been  salutary  in  its  restrictions. 

Mr.  C.  B.  McLaughlin  —  Mr.  Chairman,  I  move  that  the  com- 
mittee do  now  rise  and  report  this  amendment  adversely. 

Mr.  M.  E.  Lewis  —  Mr.  Chairman,  under  the  precedent  which  has 
been  established  in  this  Convention,  I  think  the  motion  is  entirely 
proper.  It  seems  to  be  the  custom  in  this  Convention  to  reject  the 
reports  of  all  committees  which  have  a  majority  of  their  members 
reporting  in  their  favor.  I  think,  under  those  circumstances,  this 
report  should  be  rejected. 


856  REVISED  RECORD.  [Monday, 

Mr.  Vecder — Report  adversely  on  the  proposition  or  on  thu 
amendment? 

The  Chairman  —  Adversely  on  the  amendment. 
Mr.  I.  S.  Johnson  —  Mr.  Chairman,  has  the  amendment  been 
withdrawn? 

The  Chairman  —  This  motion  to  report  adversely  takes  prece- 
dence of  all  amendments. 

The  Chairman  put  the  question  on  the  motion  of  Mr.  McLaughlin, 
and  it  was  determined  in  the  affirmative. 

President  Choate  resumed  the  chair. 

Chairman  Moore  —  Mr.  President,  the  Committee  of  the  Whole 
have  had  under  consideration  proposed  constitutional  amendment 
(printed  No.  397),  entitled  "  Proposed  constitutional  amendment  to 
abolish  all  commissions,  except  those  constituted  of  elective  officers, 
and  to  inhibit  the  power  of  creating  permanent  commissions,"  have 
made  some  progress  in  the  same,  and  have  instructed  the  chairman 
to  report  adversely  thereon. 

The  President  put  the  question  on  agreeing  with  the  report  of 
the  Committee  of  the  Whole. 

Mr.  Dean  —  Mr.  President,  if  there  are  fifteen  gentlemen  in  this 
room  who  will  support  a  motion  for  a  call  of  the  roll  on  this,  I 
would  like  to  have  the  ayes  and  noes. 

The  President  —  Does  Mr.  Dean  call  for  the  ayes  and  noes? 

Mr.  Dean  —  I  do. 

The  President  —  Mr.  Dean  makes  this  a  question  of  courage. 

The  call  for  the  ayes  and  noes  was  supported. 

The  Secretary  proceeded  to  call  the  roll. 

Mr.  Barhite  —  Mr.  President,  I  am  a  member  of  the  committee 
which  reported  this  amendment  favorably 

The  President  —  Do  you  desire  to  be  excused  from  voting? 

Mr.  Barhite  —  I  desire  to  be  excused  from  voting.  I  desire  to  say 
that  I  can  express  the  sentiments  here  which  I  expressed  in  the 
committee,  namely,  that  while  I  think  there  are  some  commissions 
in  the  State  of  New  York  which  are  useless,  there  is  a  large  number 
that  are  doing  good  and  faithful  work  with  but  a  small  expense  to 
the  State  of  New  York ;  and  I  think  that  this  proposed  amendment 
is  altogether  too  sweeping;  that  there  is  no  practical  method  by 
which  the  same  amount  of  work  could  be  done  in  any  other  way 
than  that  in  which  it  is  done  by  the  commissions  which  are  now 
empowered  to  act.  I  withdraw  my  excuse,  and  vote  aye. 


August  20.]  CONSTITUTIONAL  CONVENTION.  857 

Mr.  E.  A.  Broun  —  Mr.  President,  Task  to  be  excused  from 
voting,  and  will  briefly  state  my  reasons.  I  am  a  member  of  the 
committee  which  reported  this  amendment  favorably.  I  feel  very 
much  as  Mr.  Barhite  does.  I  think  that  several  of  the  commissions 
which  are  now  in  existence  might  be  done  away  with.  I  think  that 
it  could  be  done,  and  I  think  that  it  would  be  advantageous  to  the 
people  of  the  State  if  it  could  be  done.  There  seems  to  be  consid- 
erable difficulty  in  determining  just  which  of  the  commissions  should 
be  abolished,  and,  therefore,  I  feel  that  the  present  proposed  amend- 
ment is  rather  broad  and  sweeping  in  its  terms.  I  have  no  private, 
personal  opinion  about  the  matter,  nor  do  I  sympathize  with  that 
class  of  persons  which  seems  to  think  that  the  report  of  a  committee 
should  be  conclusive.  As  the  vote  upon  this  question  seems  to  have 
been  foreshadowed  by  the  action  in  Committee  of  the  Whole,  I  bow 
to  that  decision  and  withdraw  my  application  to  be  excused  from 
voting,  and  vote  aye. 

Mr.  I.  S.  Johnson  —  Mr.  President,  I  ask  to  be  excused  from 
voting,  and  will  briefly  state  my  reasons.  I  fully  agree  wtih  Mr. 
Barhite  that  there  are  some  commissions  that  are  doing  a  great 
deal  of  good;  that  there  are  many  others  that  are  entirely  useless, 
and  are  entailing  a  great  expense  on  the  State  and  furnishing  pap  to 
either  party,  whether  it  be  Democratic  or  Republican,  when  it  hap- 
pens to  be'  in  office,  and  I  think  that  if  this  proposition  was 
passed  it  would  give  the  Legislature  an  opportunity  to  retain  that 
which  was  good,  and  to  reject  that  which  was  bad;  and  I  think  that 
is  the  spirit  of  this  amendment.  It  has  been  suggested  that  the 
dairy  commission  was  of  great  benefit  to  the  agriculturists  of  this 
State.  I  believe  if  there  is  an  unmitigated  nuisance  in  this  State, 
it  is  the  dairy  commission.  In  my  own  county,  where  the  dairy 
interests  are,  perhaps,  concerned  as  much  as  in  any  other  county  in 
the  State,  we  had  an  assistant  dairy  commissioner  who  never  saw  a 
cow,  hardly.  He  had  been  a  conductor,  I  believe,  at  one  time  upon 
some  freight  car,  and  he  had  been  a  political  manipulator,  and  he 
was  appointed  assistant  dairy  commissioner;  and,  sir,  the  power 
was  taken  away  from  the  people  who  are  interested  in  dairy  inter- 
ests, which  had  theretofore  existed  in  them,  of  watching  their  own 
men,  and  it  was  put  into  the  hands  of  persons  who  knew  nothing 
about  dairying.  It  is  because  I  believe  that  wre  could  in  this  way 
get  rid  of  that  which  is  bad,  and  retain  that  which  is  good,  that  I 
withdraw  my  request  to  be  excused  and  vote  no. 

Mr.  Lincoln  —  Mr.  President,  I  ask  to  be  excused  from  voting. 
It  seems  that  the  subject  of  commissions  has  become  one  which 
deserves  the  attention  of  the  State,  and  might  well  deserve  the  atten- 


858  REVISED  RECORD.  [Monday, 

tion  of  this  Convention.  'Whether  this  amendment,  as  proposed, 
would  accomplish  the  desired  result  may  be  somewhat  doubtful. 
But  I  believe  that  this  fashion,  this  modern  fashion  in  the  State  of 
Xew  York,  of  creating  a  series  of  officers  by  way  of  the  appointment 
of  commissions  which  become,  in  fact,  permanent,  should  be  depre- 
cated; and  if  there  is  any  way  to  check  it,  it  should  be  checked. 
Now,  I  have  some  doubt  about  the  availability  of  this  proposed 
amendment  to  accomplish  that  result,  but  I  believe  that  some  result 
of  that  kind  would  be  possible  by  this  Convention  if  we  should  give 
it  proper  attention;  and  if  this  matter  could  receive  further  con- 
sideration from  the  Convention,  something,  perhaps,  could  be 
agreed  upon.  For  that  reason  I  withdraw  my  request  to  be  excused, 
and  vote  no. 

Mr.  McDonough  —  Mr.  President,  I  ask  leave  to  be  excused  from 
voting,  and  will  briefly  state  my  reasons.  I  believe  that  the  prin- 
ciples involved  in  this  proposed  amendment  are  desirable,  and 
would,  if  carried  into  effect,  work  well.  I  think,  however,  it  ought 
to  be  amended,  and  I  am  sorry  that  opportunity  was  not  given  in 
Committee  of  the  Whole  for  amending  it;  and  in  order  to  bring 
the  matter  before  the  Convention,  I  desire  to  vote  to  that  effect. 
I,  therefore,  withdraw  my  request  to  be  excused  from  voting,  and 
vote  no. 

Mr.  McKinstry  —  Mr.  President,  I  desire  to  be  excused  from 
voting.  I  could  not  hear  Mr.  Dean's  argument  very  plainly,  and, 
therefore,  cannot  corroborate  what  he  said  on  the  general  merits  of 
the  proposition;  but  I  wish  to  corroborate  what  Mr.  Johnson  has 
said  about  the  feeling  in  the  country,  that  a  great  many  of  these 
commissions  while  appointed  ostensibly  in  the  interests  of  the 
farmers,  are  really  appointed  for  political  purposes;  and  this  dairy 
commission,  spoken  of  so  highly  here,  is  spoken  of  in  our  county  in 
the  contemptuous  term  of  the  "  sour  milk  brigade."  If  we  could  get 
rid  of  some  of  those  commissions,  I  should  be  very  glad  of  it.  They 
are  a  great  burden  on  the  people  and  a  fraud  on  the  farmers.  I 
withdraw  my  request  to  be  excused,  and  vote  no. 

Mr.  Spencer  —  Mr.  President,  I  desire  to  be  excused  from  voting. 
If  I  were  a  member  of  the  Legislature,  and  were  called  upon  to  vote 
on  this  proposition  I  should  cheerfully  vote  for  the  same,  or  some- 
thing of  that  nature  I  would  certainly  vote  to  abolish  a  number  of 
commissions  as  they  now  exist;  but,  if  this  Convention  is  "to  accom- 
plish its  work,  we  must  draw  the  line  between  what  we  are  to  do  and 
what  should  be  left  to  the  Legislature;  and  for  us,  in  this  Con- 
vention, to  vote  that  all  existing  commissions  shall  be  abrogated, 


August  20.]  CONSTITUTIONAL  CONVENTION.  859 

and  that  this  whole  matter  should  be  relegated  to  the  incoming 
Legislature  to  go  over  again,  and  that  no  commission  should  be 
created  that  would  last  longer  than  three  years,  is  a  proposition  to 
which  I  cannot  lend  my  approval.  I  think,  sir,  that  in  spite  of  the 
fact  that  many  commissions  have  been  created  by  the  Legislature 
that  were  improper  and  should  now  be  abrogated,  nevertheless,  it  is 
a  matter  that  should  be  left  with  the  Legislature,  and  not  be  dealt 
with  by  this  Convention.  I,  therefore,  withdraw  my  request  to  be 
excused,  and  vote  aye. 

Mr.  T.  A.  Sullivan  —  Mr.  President,  I  desire  to  be  excused  from 
voting,  and  to  state  my  reasons.  I  am  opposed  to  the  system  of 
administration  of  our  laws  through  legislative  bureaus  and  com- 
missions. However,  I  do  think  that  the  Legislature  should  have 
power  to  appoint  commissions  for  certain  purposes,  not  for  the 
administration  of  the  law,  as  they  have  been  appointed  in  many 
instances.  I  think  that  legislative  bureaus  and  commissions  for  the 
administration  of  laws  are  contrary  to  the  principles  of  our  govern- 
ment. However,  this  amendment  is  too  broad  for  me  to  subscribe 
to.  Therefore,  I  must  withdraw  my  request  to  be  excused,  and 
vote  aye. 

Mr.  Vedder  —  Mr.  President,  I  ask  to  be  excused  from  voting. 
There  are  some  things  connected  with  this  proposition  which  I  do 
not  believe  in.  However,  as  a  member  of  the  committee,  I  thought 
that  the  good  that  was  in  it  very  greatly  overbalanced  some  defects 
that  might  be  in  it.  While  I  did  not  believe  it  was  perfect,  I  felt, 
nevertheless,  that  when  it  came  before  the  Convention  the  combined 
wisdom  of  the  Convention  might  suggest  some  things  that  I  myself 
did  not  think  of  and  perfect  the  bill,  saving  so  much  of  it  as  was 
absolutely  good.  I  knew  this  —  I  believed  at  least  —  that  the  Con- 
vention knew  more  than  any  one  member  of  it;  that  the  Convention 
knew  more  than  any  one  member  of  the  committee,  and  I  thought, 
as  I  said  before,  that  the  Convention  might  suggest  some  method  of 
perfecting  the  bill  and  saving  that  in  it  which  was  absolutely  good, 
and  there  is  much  of  it  which  is  good.  Believing  that  it  will  still  do 
that,  I  withdraw  my  request  to  be  excused,  and  vote  no. 

Mr.  Burr  —  Mr.  President,  I  have  received  a  telegram  from  Mr. 
Cochran  and  also  one  from-  Mr.  Arthur  D.  Williams,  stating  that 
they  desire  to  be  excused  from  this  morning's  session,  but  that  they 
will  be  here  at  12  o'clock. 

The  President  put  the  question  on  the  request  to  excuse  Mr. 
Cochran  and  Mr.  Williams,  and  they  were  so  excused. 

The  Secretary  then  completed  the  calling  of  the  roll  and  the  ques- 


860  REVISED  RECORD.  [Monday, 

tion  on  agreeing  with  the  report  of  the  Committee  of  the  Whole 
was  determined  in  the  affirmative  by  the  following  vote: 

Ayes  —  Messrs.  Acker,  Ackerly,  Alvord,  Arnold,  Baker,  Barhite, 
Barnum,  Brown,  E.  A.,  Brown,  E.  R.,  Burr,  Cady,  Campbell,  Cas- 
sidy,  Chipp,  Jr.,  Church,  Clark,  G.  W.,  Cookinham,  Countryman, 
Danforth,  Davenport,  Dickey,  Doty,  Durfee,  Durnin,  Emmet,  Floyd, 
Foote,  Forbes,  Francis,  Fuller,  C.  A.,  Fuller,  O.  A.,  Giegerich,  Gil- 
leran,  Hamlin,  Hawley,  Hill,  Holcomb,  Holls,  Hotchkiss,  Hotten- 
roth,  Johnson,  J.,  Kerwin,  Kurth,  Lauterbach,  Lester,  Lewis,  C.  H., 
Lewis,  M.  E.,  Marks,  Marshall,  Maybee,  McArthur,  McCurcly, 
Mclntyre,  McLaughlin,  C.  B.,  Mereness,  Nichols,  Ohmeis,  Osborn, 
Peabody,  Peck,  Platzek,  Redman,  Root,  Rowley,  Sandford,  Spencer, 
Steele,  W.  H.,  Sullivan,  T.  A.,  Sullivan,  W.,  Truax,  C.  H.,  Turner, 
Veeder,  Wellington,  Whitmyer,  Wiggins,  President  —  76. 

Noes  —  Messrs.  Bigelow,  Cornwall,  Dean,  Jacobs,  Johnson,  I. 
Sam,  Kellogg,  Kimmey,  Lincoln,  McDonough,  McKinstry,  Moore, 
Morton,  Nostrand,  O'Brien,  Parker,  Pratt,  Rogers,  Schumaker, 
Vedder,  Wroodward —  20. 

The  President  —  While  we  are  in  Convention  a  communication 
has  been  received  from  The  Argus  Company,  which  will  be  read,  as 
it  refers  to  the  printing  business  of  the  Convention. 

The  Secretary  read  the  following  communication: 

OFFICE  OF  THE  ARGUS, 

ALBANY,  Angitst  18,  1894. 

The  Honorable  Joseph  H.  Choate,  President  Constitutional  Convention: 
SIR. —  In  reply  to  the  inquiry  of  your  honorable  body  in  relation 
to  the  printing  for  the  Constitutional  Convention,  The  Argus  Com- 
pany would  respectfully  report: 

First.  That  in  every  case  the  work  of  The  Argus  Company  has 
been  done  pursuant  to  the  contracts  and  the  resolutions  and  instruc- 
tions of  your  honorable  body. 

Second.  That  The  Argus  Company  is  unable  to  supply  printed 
copies  of  the  debates  for  the  simple  reason  that  the  copy  for  the 
past  five  sessions  is  not  in  its  possession  and  has  not  been  furnished 
to  it  by  the  stenographer  and  that,  furthermore,  The  Argus  Com- 
pany, in  compliance  with  the  resolution  of  the  Convention  has 
employed  an  additional  force  of  men  at  considerable  expense  in 
order  to  furnish  the  printed  copies  of  the  debates  speedily  and  that 
these  men  have  been  without  copy  of  the  debates,  for  two  days  of  the 
current  week  to  the  loss  and  injury  of  The  Argus  Company. 


August  20.]  CONSTITUTIONAL  CONVENTION.  86l 

Third.  The  stenographer  informs  us  that  one  reason  for  the  delay 
in  furnishing  copy  for  the  debates  is  that  the  members  of  the  Con- 
vention obtain  his  copy  for  the  purpose  of  revising  and  editing  their 
speeches.  The  result  of  this  revising  and  editing  is  that  the  copy 
is  frequently  illegible  and  that  it  does  not  reach  this  office  until 
some  time  after  its  preparation  by  the  stenographer.  In  the  case  of 
Tuesday  evening's  debates  the  type  was  set  and  proofs  furnished 
for  the  use  of  members  who  retained  them  some  time  making  cor- 
rections and  alterations  in  them. 

The  Argus  Company  feels  that  its  business  reputation  is  injured 
by  the  unjust  and  unfounded  attacks  made  upon  it  in  the  Conven- 
tion. We  are  held  responsible  for  the  acts  of  the  delegates  and  the 
employes  of  the  Convention.  We  have  been  blamed  for  not  fur- 
nishing documents  when  employes  of  the  Convention  had  not 
placed  them  on  the  file  boards,  although  the  documents  had  been 
delivered  and  we  held  receipts  for  them.  We  are  neither  the  stenog- 
raphers of  the  Convention,  nor  its  sergeant-at-arms  and  page  boys. 
We  have  given  the  Convention  more  prompt  and  better  service  than 
under  any  legislative  contract.  We  have  run  nights  at  a  greatly 
increased  expense  in  order  to  print  in  time  for  the  morning  sessions, 
matter  which,  by  resolutions  of  the  Convention,  was  ordered  to  be 
sent  to  us  before  four  o'clock  in  the  afternoon  and  which  we  do  not 
receive  until  eleven  o'clock  midnight. 

We  appeal  to  you  as  the  presiding  officer  of  the  Convention,  and 
to  your  sense  of  justice  to  protect  us  against  these  unfounded 
attacks  and  to  prevent  statements  on  the  floor  of  the  Convention 
and  on  its  authority  which  are  libels  upon  our  business  reputation. 

We  ask  that  this  communication  be  treated  as  a  formal  com- 
munication to  the  Convention  and  entered  upon  its  records. 

Very  respectfully, 

THE  ARGUS  COMPANY, 

M.  V.  D. 

The  President  —  This  seems  to  require  some  action  by  the  Con- 
vention, if  it  is  not  content  to  receive  the  reports  of  the  debates  a 
week  after  the  debates  in  expectation  on  their  part  that  they  will 
be  read.  (Laughter.)  As  it  is,  the  stenographer  has  not  seemed 
to  be  performing  his  duty,  as  I  think  it  was.prescribed  by  the  former 
orders  that  each  night  he  should  deliver  this  matter  to  The  Argus 
Company.  What  action  will  the  Convention  take? 

Mr.  McDonough  —  Mr.  President,  I  move  that  the  communica- 
tion from  The  Argus  Company  be  received  and  placed  on  the 

minutes. 


862  REVISED  RECORD.  [Monday, 

Mr.  Schumaker  —  Mr.  President,  it  certainly  is  a  gross  violation 
of  privilege  for  any  delegate  of  this  Convention  to  revise  his  speech 
after  he  delivers  it.  It  is  not  known  to  me  to  be  done  with  the 
consent  of  any  deliberative  body  that  ever  I  have  been  connected 
with,  and  they  are  not  a  few,  unless  the  member  moves  for  leave 
to  print.  If  a  delegate  rises  in  a  deliberative  body  where  there  are 
debates,  and  does  not  wish  to  say  anything,  but  asks  leave  to  print, 
then  it  is  proper ;  but  you  cannot  lug  in  an  oration  and  all  that  that 
has  not  been  delivered  in  the  body.  In  doing  so,  a  man  is  guilty  of 
something  which  he  ought  not  to  do. 

The  President  —  The  speech  may  not  be  as  good  as  he  thought 
for.  (Laughter.) 

Mr.  Schumaker  —  That  won't  do;  he  has  to  take  it  as  it  comes. 
He  cannot  insert  the  Declaration  of  Independence  and  three  or  four 
Constitutions  of  various  States  and  a  lot  of  poetry  and  all  that.  He 
has  to  give  it  to  the  reporter  as  delivered,  and  we  have  to  have  it  as 
he  said  it  here,  or  it  is  not  fair  as  the  record  of  the  monks  of  old. 

The  President  —  Perhaps  Mr.  Hamlin  can  inform  the  Convention 
upon  the  subject.  The  Chair  is  under  the  impression  that  the 
standing  orders  require  the  stenographer  to  give  this  matter  to 
The  Argus  Company  each  night. 

Mr.  Hamlin  —  I  think  that  is  so,  Mr.  President. 

The  President  —  If  so,  he  should  be  either  compelled  to  do  it,  or 
relinquish  it. 

Mr.  Hamlin  —  But  the  difficulty  arises  from  the  good  nature  of 
the  stenographer  toward  the  members  of  this  Convention,  who  are 
not  satisfied  with  their  speeches  and  desire  to  revise  them. 

Mr.  Schumaker  —  That  is  not  fair. 

Mr.  Hamlin  —  And  I  think  The  Argus  Company  is  entirely  cor- 
rect in  that  particular  instance,  from  the  investigations  I  have  made. 
For  instance,  this  morning  I  went  to  the  stenographer,  and  there 
lay  upon  his  table  the  proceedings  of  Saturday  morning  and  Satur- 
day afternoon,  which  were  held  for  members'  of  this  Convention, 
at  their  request,  for  correction.  They  had  either  taken  a  portion 
of  it  away,  or  else  it  was  held  for  their  particular  benefit;  and,  of 
course,  The  Argus  Company,  under  such  circumstances,  is  not  at 
all  responsible  for  the  delay  in  putting  these  Records  upon  the  files 
of  the  members.  Certainly  some  resolution  should  be  passed,  either 
asking  the  stenographer  to  discontinue  this  practice,  or  else  that 
he  enforce  the  rules  as  they  actually  exist. 

Mr.  Schumaker —  Is  there  anything  in  the  rules  about  it? 


August  20.]  CONSTITUTIONAL  CONVENTION.  863 

The  President  —  Mr.  Acker  has  the  floor. 

Mr.  Acker  —  Mr.  President,  I  am  sure  that  all  I  have  said  in  this 
Convention  will  very  soon  find  its  way  into  the  waste  basket,  in 
some  form  or  other,  and,  therefore,  I  move  you  that  the  stenogra- 
pher be  asked  to  present  his  notes  to  The  Argus  Company  as 
required  by  the  former  resolutions  of  this  body,  and  that  if  any  per- 
son wishes  to  revise  his  speech,  he  shall  do  it  in  time  for  the  stenog- 
rapher to  carry  out  the  former  orders  of  this  Convention. 

Mr.  Schumaker  —  Mr.  President,  does  the  gentleman  mean  to 
say  that  a  member  has  the  right  to  revise  his  speech  after  he  delivers 
it  in  this  body,  without  reading  it  again  in  this  body?  Is  that  the 
rule  of  any  deliberative  body  in  the  world? 

Mr.  Acker  —  Mr.  President,  I  do  not  propose  to  say  any  such 
thing,  or  to  say  anything  on  that  subject  at  all.  My  only  proposi- 
tion is,  that  we  should  have  this  printing  done  as  we  have  said  we 
would  have  it  done,  or  else  back  down  and  say  something  else. 

The  President  —  I  wish  Mr.  Acker,  or  some  other  gentleman,  if 
he  can  find  the  previous  order  in  the  Journal,  would  call  it  to  the 
attention  of  the  Convention. 

Mr.  Veeder  —  Mr.  President,  I  submit  that  the  correction  or  the 
editing  of  the  debates  can  be  abandoned.  Every  member  of  this 
Convention  is  invited  by  the  Compiler,  who  will  issue  the  official 
edition  of  the  Debates,  to  go  there  or  to  send  to  him  corrected 
copies  of  his  speeches  or  of  the  arguments  made  here.  Now,  I  sub- 
mit, as  to  substance,  my  colleague,  Mr.  Schumaker,  is  perfectly 
correct;  that  gentlemen  should  not  alter,  nor  should  new  matter 
be  injected  into  their  remarks,  else  matters  may  be  talked  of  here 
in  this  Convention  ostensibly,  and  delegates  remain  in  their  seats, 
without  making  answer  thereto,  when  they  may  have  had  complete 
answers  to  make.  Now,  if  there  is  any  compiling  or  correction  of 
these  speeches  going  on,  it  should  not  be  permitted  that  any  mem- 
ber of  the  Convention  may  inject  into  his  speech  any  new  matter. 

Mr.  McKinstry  —  Mr.  President,  I  want  to  say  that  I  do  not 
believe  any  delegate  here  has  revised  a  speech  so  as  to  put  into  it 
anything  different  from  what  he  said.  What  they  do  object  to  is 
having  matter  printed  that  they  never  said  at  all  and  having  it 
reported  entirely  different.  Stenography  is  not  an  exact  science; 
this  is  a  hard  room  to  hear  in.  I  have  heard  complaints  from 
members  here  who  have  spoken  and  found  their  words  almost 
reversed  or  made  ridiculous.  It  seems  to  me  no  more  than  fair, 
when  this  matter  is  going  into  a  permanent  record,  that  the  mem- 
bers should  be  allowed  to  make  typographical  and  grammatical  cor- 


864  REVISED  RECORD.  [Monday, 

rections  in  their  speeches.  It  makes  no  difference  to  me;  what 
little  I  have  said  I  have  submitted  in  manuscript,  and  they  did  not 
get  that  right,  although  written  very  plainly;  but  the  main  fault 
found  here  has  been  by  members  who  have  made  very  careful 
speeches,  and  then  found  the  stenographer's  report  has  not  been 
correct,  and,  I  think,  they  ought  to  have  the  opportunity  of  going 
into  history  on  exactly  what  they  do  say. 

Mr.  Hottenroth  —  Mr.  President,  that  resolution  can  be  found 
on  pages  225,  226  and  227  of  the  Journal. 

Mr.  Vedder  —  Mr.  President,  I  beg  leave  to  make  a  suggestion. 
I  suppose  all  the  delegates  have  received  a  communication  from 
Mr.  Glynn,  the  Compiler,  to  the  effect  that  he  was  revising  the 
debates  that  have  been  had  here,  and  asking  delegates  to  look  over 
the  debates  and  see  whether  or  not  they  desired  to  make  corrections, 
and  that  they  send  the  corrections  in  to  him.  I  do  not  understand 
that  in  permanent  form  these  debates  will  be  as  they  are  printed 
here;  that  the  same  types  are  to  be  employed.  These  debates,  as 
I  understand,  when  they  go  into  a  permanent  record,  will  all  be 
reset,  in  a  different  type,  and  at  that  time  corrections  can  be  made. 
I  would  suggest,  if  that  be  true,  as  it  seems  to  be,  that  these  debates 
be  printed,  and  then  members  will  all  have  an  opportunity  to  correct 
them  as  they  go  into  permanent  form.  There  are  not  very  many 
mistakes  made;  some,  but  not  many.  They  could  be  corrected 
before  the  Compiler  puts  them  into  permanent  form.  Then  we  can 
have  the  debates.  I  would  like  to  see  what  members  have  said  the 
day  before,  if  I  can,  without  criticising  their  grammar,  either. 

Mr.  Rolls  —  Mr.  President,  it  seems  to  me  that  this  entire  matter 
is  sufficiently  covered  by  the  existing  rules  of  the  Convention,  and 
I  surely  bear  witness  to  the  fact  that  the  stenographer's  report  is 
not  accurate,  owing,  as  it  is,  to  the  difficulty  of  hearing  in  this 
chamber,  and  that  very  often  very  grave  mistakes  are  made.  I 
think,  however,  that  this  discussion  and  the  calling  attention  to  the 
abuse  and  delay  of  this  matter,  has  done  good,  and  I,  therefore, 
believe  Mr.  McDonough's  motion,  which  was  that  the  communica- 
tion be  received  and  laid  on  the  table,  and  which  I  hold  not  to  be 
debatable,  will  now  be,  it  seems,  the  best  possible  disposition  of  the 
matter. 

The  President  —  The  Chair  did  not  understand  Mr.  McDonough 
to  make  that  motion.  If  you  make  it,  it  will  be  put. 

Mr.  Alvord  —  Mr.  President,  I  make  the  motion,  in  order  to  get 
out  of  this  trouble,  that  this  be  received,  laid  upon  the  table  and 
printed. 


August  20.]  CONSTITUTIONAL  CONVENTION.  865 

The  President  put  the  question  on  the  motion  of  Mr.  Alvord  that 
the  communication  from  The  Argus  Company  be  received,  laid 
upon  the  table,  and  printed,  and  it  was  determined  in  the  affirmative. 

The  President  —  The  Chair  has  received  a  communication  from 
Mr.  Tucker,  stating  the  fact  of  his  illness,  and  asking  to  be  excused 
on  that  account  until  Thursday. 

The  President  put  the  question  on  the  request  of  Mr.  Tucker  to 
be  excused,  and  he  was  so  excused. 

The  President  —  The  Secretary  will  call  the  general  orders. 

Mr.  I.  S.  Johnson  —  Mr.  President,  I  offer  the  following 
resolution : 

The  President  —  If  no  objection  is  made,  this  resolution  offered 
by  Mr.  Johnson  will  be  received. 

The  Secretary  read  the  resolution  offered  by  Mr.  Johnson,  as 
follows : 

R.  179. —  Resolved,  That  the  Committee  on  Rules  be  requested 
to  report  an  amendment  to  rule  21,  by  adding  after  the  word  "  day," 
in  the  sixth  line,  the  following  words:  "And  if  not  so  moved  on  a 
second  call,  it  shall  go  to  the  foot  of  the  calendar  of  general  orders." 

The  President  —  It  will  be  referred  to  the  Committee  on  Rules. 
It  refers  to  this  habit  we  have  got  into  of  beginning  at  the  beginning 
and  calling  them  several  times. 

The  Secretary  proceeded  to  call  the  general  orders. 

On  the  calling  of  general  order  No.  30  (printed  No.  398),  intro- 
duced by  Mr.  H.  A.  Clark,  Mr.  Hill  stated  that  Mr.  Clark  was  to- 
be  absent  from  the  Convention  for  to-day,  and  did  not  wish  that 
general  order  to  be  moved. 

The  Secretary  called  general  order  No.  31  (printed  No.  399),. 
introduced  by  Mr.  O'Brien,  as  to  suffrage. 

Mr.  O'Brien  —  Mr.  President,  I  move  that. 

The  President  put  the  question  on  going  into  Committee  of  the- 
Whole  on  this  general  order,  and  it  was  determined  in  the 
affirmative. 

The  House  resolved  itself  into  Committee  of  the  Whole,  and 
Mr.  Schumaker  took  the  chair. 

The  Chairman  —  The  Convention  is  in  Committee  of  the  Whole 
on  general  order  No.  31   (printed  No.  399),  introduced  by  Mr. 
O'Brien,  entitled,  "  Proposed  constitutional  amendment  to  amend 
section  3  of  article  2  of  the  Constitution,  as  to  suffrage." 
55 


866  REVISED  RECORD.  [Monday, 

The  Secretary  read  the  amendment  as  follows : 

Section  3  of  article  2  of  the  Constitution  is  hereby  amended  so  as 
to  read  as  follows : 

Sec.  3.  For  the  purpose  of  voting  no  person  shall  be  deemed  to 
have  gained  or  lost  a  residence  by  reason  of  his  presence  or  absence, 
while  employed  in  the  service  of  the  United  States;  nor  while 
engaged  in  the  navigation  of  the  waters  of  this  State,  or  of  the 
United  States,  or  of  the  high  seas ;  nor  while  a  student  of  any  semi- 
nary of  learning;  nor  while  kept  at  any  alms-house,  or  other  asylum 
or  institution,  wholly  or  partly  supported  at  public  expense,  or  by 
charity;  nor  while  confined  in  any  public  prison. 

Mr.  O'Brien  —  Mr.  Chairman,  I  move  to  strike  out  the  first  line. 
While  this  proposed  amendment  bears  my  name,  I  do  not  assume 
any  responsibility  for  it,  nor  claim  any  credit  for  its  paternity.  It  is 
really  an  emanation  from  the  Suffrage  Committee,  and  the  intention 
of  the  amendment  is  clearly  seen  in  the  portion  which  is  printed  in 
italics,  in  lines  nine  and  ten,  which  make  the  only  change  from  the 
original  section  in  the  Constitution,  and  it  is  intended  simply  to 
carry  out  and  effectuate  the  spirit  of  the  section  of  the  present  Con- 
stitution. It  will  be  seen  that  no  one  may  gain  or  lose  a  residence 
"  while  a  student  of  any  seminary  of  learning,  nor  while  kept  at  any 
alms-house."  Now,  we  simply  extend  that  a  little  further,  and  say 
that  no  one  shall  gain  a  residence  while  kept  in  any  institution  of  a 
charitable  nature. 

Mr.  C.  B.  McLaughlin  —  Will  the  gentleman  permit  me  to  ask 
him  a  question?  Does  such  a  person  now  gain  a  residence? 

Mr.  O'Brien  —  I  understand  that  in  the  Sailors'  Snug  Harbor, 
for  instance,  on  Staten  Island,  in  Richmond  county,  that  there  are  a 
large  number  of  inhabitants  of  that  institution  who  now  obtain  a 
residence  by  reason  of  their  living  there  and  being  supported  at 
public  expense  or  private  expense. 

Mr.  C.  B.  McLaughlin  —  Will  the  gentleman  call  the  attention  of 
this  Convention  to  some  provision  or  statute  by  which  a  person  can 
obtain  a  residence? 

Mr.  O'Brien  —  I  know  of  no  such  decision,  but  they  vote  there 
and  have  voted  for  a  long  time  at  all  elections.  I  am  told  by  other 
members  of  the  Suffrage  Committee,  who  have  looked  into  the 
matter  that  there  is  a  decision  on  that  question  in  the  H7th  New 
York.  I  have  no  extended  remarks  to  make  on  this  amendment. 
I  think  it  is  one  that  commends  itself  to  the  favorable  consideration 
of  the  committee.  I  am  ready  to  answer  any  question  which  I  am 
able  to  answer  on  the  subject. 


August  20.]  CONSTITUTIONAL  CONVENTION.  867 

Mr.  Titus  —  Mr.  Chairman,  the  gentleman  proposing  this 
amendment  states  that  he  is  willing  to  answer  any  question.  How 
will  this  affect  the  Soldiers'  Home  in  Bath? 

Mr.  O'Brien  —  I  suppose  that  is  left  just  as  it  is.  There  was 
another  proposition  pending  before  the  committee  in  regard  to 
soldiers'  homes,  and  which  is  not  included  in  this  amendment. 
This  refers  simply  to  those  charitable  institutions,  such  as  old  men's 
homes,  Sailors'  Snug  Harbor,  and  institutions  of  that  kind,  which, 
although  not  alms-houses  under  the  law,  are  really  charitable 
institutions. 

Mr.  J.  Johnson  —  Mr.  Chairman,  I  would  like  to  ask  the  gentle- 
man a  question  in  relation  to  this  matter,  whether  the  committee 
has  considered  how  this  amendment  will  affect  persons  who  have 
already  gained  a  residence  in  the  sections  where  such  an  institution 
exists,  under  the  provisions  of  the  existing  Constitution? 

Mr.  O'Brien  —  Mr.  Chairman,  I  suppose  that  a  person  who  has 
already  gained  a  residence  will  maintain  that  residence.  I  do  not 
see  how  this  constitutional  amendment  will  affect  that. 

Mr.  Holcomb  —  Mr.  Chairman,  I  think  that  the  gentleman  from 
Cayuga  (Mr.  O'Brien)  is  under  a  misapprehension  in  reference  to 
the  men  who  live  at  Sailors'  Snug  Harbor.  If  I  understand  it  cor- 
rectly, they  are  men  like  the  sailors,  who,  having  passed  their  lives 
on  the  high  seas  and  navigation  of  the  waters  of  the  State  and  the 
waters  generally,  wherever  the  calling  of  the  sailor  might  take  them, 
find  themselves  at  the  close  of  their  lives  without  any  home,  and  the 
Randall  charity,  as  it  is  called  down  there,  which  establishes  the 
Sailors'  Snug  Harbor,  simply  gives  them  what  the  State  gives  the 
soldiers,  who,  having  done  their  duties  in  the  armies  of  the  republic 
and  State,  and  who  are  really  the  wards  of  this  State,  from  which 
they  enlisted  into  the  armies  of  the  United  States,  gives  them  the 
right  to  a  home  which  they  would  have  nowhere  else  in  the  world. 
They  are  not  strictly  charitable  persons  at  the  Sailors'  Snug  Harbor; 
they  are  not  living  upon  any  charities.  They  are  simply  men  whose 
lives  have  been  exhausted,  as  we  might  say,  in  the  service  of  the 
commerce  of  the  country,  and  they  go  to  the  Sailors'  Snug  Harbor 
at  the  close  of  their  lives  to  enjoy  what  cannot  be  given  them  any- 
where else,  and  which,  in  truth,  literally  speaking,  is  their  home  just 
as  much  as  was  their  home  from  which  they  went  as  children  to 
enter  upon  that  calling.  I  do  not  think  any  discrimination  should 
be  made  against  those  men.  They  are  not  poor  men  in  any  sense. 
They  are  not  evil  men.  They  are  not  suffering  anything  at  all, 
except  the  penalties  which  come  at  the  end  of  a  long  life,  after  the 


868  REVISED  RECORD.  [Monday, 

energies  of  their  manhood  have  been  exhausted  by  their  arduous 
labors.  I  think  that  it  would  be  entirely  improper.  I  shall  ask 
that  there  may  be  an  amendment  made.  I  would  like  the  privilege 
of  putting  it  in  writing,  so  that  it  can  be  better  understood  than  it  is, 
that  which  is  in  my  mind.  But,  sir,  I  should  not  like  to  except  from 
the  operations  of  this  amendment  the  Sailors'  Snug  Harbor  alone, 
but  any  charity  of  that  sort.  I  used  the  word  "  charity,"  not  in  the 
strictest  sense,  but  any  institution  where  a  man  can  be  given  an 
abiding  place,  a  home  from  which  they  never  can  go  again,  except 
to  their  grave.  I  think  that  those  men  should  certainly  be  excepted 
from  the  operations  of  this  amendment.  I  will  have  prepared  and 
submit  in  writing  presently  an  amendment  that  will  cover  that. 

Mr.  C.  A.  Fuller  —  I  do  not  know  what  particular  vice  this  pro- 
posed amendment  was  designed  to  cure,  what  particular  class  of 
persons  it  would  reach.  I  remember  in  1888,  in  the  Legislature  of 
this  State,  there  was  a  good  deal  of  controversy  as  to  the  status  of 
those  who  were  cared  for  at  the  Soldiers  and  Sailors'  Home  at  Bath. 
I  think  the  result  of  the  controversy  at  that  time  was  that  a  special 
provision  was  made  in  some  way  that  the  occupants  of  the  home 
might  be  allowed  to  vote  in  the  localities  from  which  they  came. 
I  do  not  see  how  this  addition  could  very  much  change  the  present 
condition  of  the  law.  It  does  not  say  that  those  in  any  condition, 
whether  they  be  sailors  on  Staten  Island,  residing  in  that  home, 
shall  be  allowed  to  gain  a  residence  there  and  vote  there,  or  at  some 
other  place,  where  they  previously  have  had  a  residence.  It  does 
not  say  that  the  soldiers  at  Bath  may  retain  their  residence  where 
they  had  it  before  going  to  the  home,  and  send  their  votes  by  mail, 
as  was  provided  that  the  soldiers  might  do  in  war  times.  For  my 
part,  I  cannot  see  how  the  addition  of  the  italicised  words  would 
add  any  value  to  the  provision  as  it  now  stands. 

Mr.  Lester  —  Mr.  Chairman,  I  am  in  favor  of  this  proposed 
amendment  to  the  Constitution.  I  had  occasion,  in  performing  the 
duties  with  which  I  was  charged  as  a  member  of  the  Committee  on 
Privileges  and  Elections,  to  visit  the  districts  in  Staten  Island  which 
included  the  Sailors'  Snug  Harbor.  I  find  that  in  at  least  two  elec- 
tion districts  in  Staten  Island  the  principal  vote  is  made  up  of  the 
inmates  of  the  Sailors'  Snug  Harbor.  These  old  sailors,  who  have 
come  from  different  parts  of  the  United  States,  have  settled  down 
there,  and  are  entirely  under  the  rules  and  restrictions  imposed  by 
that  institution;  they  have  nothing  in  common  with  the  members  of 
the  community  in  the  midst  of  which  they  reside.  They  do  not 
participate  in  any  of  its  activities.  They  do  not  share  in  any  of  its 
burdens  and  they  have  no  practical  interest  in  any  of  the  questions 


August  20.]  CONSTITUTIONAL  CONVENTION.  869 

which  agitate  that  community;  and  it  is  a  demoralizing  thing  there 
that  hundreds  of  voters  who  have  nothing  in  common  with  the 
inhabitants  of  that  portion  of  the  country  should  have  the  right  to 
exercise  the  right  of  franchise  in  that  place.  It  is  demoralizing  for 
many  reasons.  It  is  demoralizing  for  this  reason,  among  others, 
I  regret  to  state  it,  but  it  is  a  fact  which  was  forced  on  my  attention 
and  which  I  must  believe,  that  these  old  men  down  there  in  the 
Sailors'  Snug  Harbor,  contain  a  very  large  proportion  of  those  who 
are  accustomed  to  cast  their  vote  under  the  influence  of  some  pecuni- 
ary consideration.  I  was  urged  by  residents  of  those  districts  who 
had  no  connection  with  the  institution,  but  represent  both  of  the 
political  parties,  to  introduce  an  amendment  for  the  relief  of  that 
community  very  similar  in  its  purport  to  that  which  is  now  under 
discussion.  This,  sir,  does  no  injustice  to  any  citizen  of  this  State. 
If  any  of  these  old  men  have  now  a  residence  and  a  right  to  vote 
elsewhere,  they  would  not,  under  the  operation  of  this  amendment, 
lose  it.  But,  sir,  it  would  prevent  a  large  number  of  voters  being 
accumulated  in  that  place  and  exercising  a  powerful  influence  upon 
all  elections  whether  municipal  or  general,  who  have  no  practical 
interest  whatever  in  the  concerns  of  the  community  in  the  midst  of 
which  they  reside.  It  is  a  demoralizing  thing  as  it  now  exists,  and 
I  am  in  favor  of  this  amendment,  which  would  remove  it. 

Mr.  Titus  —  Mr.  Chairman,  the  gentleman  from  Saratoga  (Mr. 
Lester)  is  entirely  in  error.  He  says  that  these  old  sailors  come 
from  all  parts  of  the  United  States.  The  prerequisite  to  a  home 
in  the  Sailors'  Snug  Harbor,  Richmond  county,  is  that  a  sailor  sail 
on  a  merchant  vessel  twenty-one  years,  under  the  American  flag, 
out  of  the  harbor  of  New  York.  When  he  says  that  they  come  from 
all  parts  of  the  United  States,  it  is  an  error.  This  institution,  I  do 
not  think,  receives  any  State  aid.  It  is  provided  for  by  bequests 
that  were  originally  made  for  it.  Also,  under  this  amendment,  we 
have  to  take  the  ship-carpenters,  at  Captain  Webb's  home,  on  the 
Hudson.  Mr.  Jenks  has  offered  an  amendment  which,  I  think, 
every  member  of  this  Convention  will  agree  with.  It  was  reported 
and  on  general  orders,  but  owing  to  the  absence  of  Mr.  Jenks,  who 
was  called  away  on  account  of  sickness  in  his  family,  has  not  been 
moved.  I  think  it  will  relieve  us  in  this  matter. 

Mr.  Lauterbach  —  Mr.  Chairman,  there  is  no  intent  to  change 
the  principle  of  the  existing  constitutional  amendment.  There  is 
simply  a  desire  on  the  part  of  the  Suffrage  Committee  to  have  that 
principle  extend,  not  only  to  the  asylums  and  schools  and  colleges 
mentioned  in  that  section,  but  to  cover  a  class  of  institutions,  the 
precise  status  of  which  has  not  been  fixed  or  determined.  The  law 


870  REVISED  RECORD.  [Monday, 

at  present  states  that  in  respect  of  certain  institutions  mentioned  in 
the  section  —  and  I  will  read  them  in  a  moment,  so  that  you  may 
know  what  they  are  —  an  .inmate  of  those  institutions  shall  not 
gain  or  lose  a  residence  by  reason  of  being  an  inmate.  That  is  to 
say,  that  going  to  an  institution  of  that  character  shall  not  localize 
him  for  the  purposes  of  voting  in  the  institution  of  which  he  has 
become  an  inmate,  but  that  he  still  remains,  for  voting  purposes,  a 
resident  of  the  place  from  which  he  came.  The  purpose  of  that  is 
apparent.  It  must  be  apparent  to  everyone,  of  whatever  political 
complexion  he  may  be,  that  it  is  a  gross  injustice  to  local  interests 
to  have  gathered  together  in  a  building  in  a  certain  district  a  number 
of  people,  either  wholly  or  partly  supported  by  charity,  who  have 
no  interest  in  local  affairs,  and  who  yet  may  determine  local  affairs 
absolutely  by  reason  of  the  concentration  of  their  vote.  The  Court 
of  Appeals,  in  passing  upon  the  Constitution,  as  it  now  reads,  decided 
that  the  Soldiers'  Home  at  Bath  was  covered  by  the  constitutional 
provision,  and  in  the  io7th  New  York,  in  the  case  of  Silvey  v.  Lind- 
say, at  page  55,  they  decide  that  being  an  inmate  of  the  Soldiers' 
Home  at  Bath  was,  prima  facie,  a  deprivation  of  the  right  of  voting 
in  that  district,  and  that,  as  the  Soldiers'  Home  at  Bath  was  an  asy- 
lum, a  soldier  could  not  vote  at  Bath,  but  was  assumed  still  to  be  a 
resident  of  the  district  from  which  he  had  come,  unless  he  chose 
to  appear  before  the  election  officers  and  make  proof  that  he  had  no 
other  residence,  and  that  his  home  was  at  Bath,  and  nowhere  else. 
So  that  there  is  not  in  this  constitutional  amendment  any  effort  to 
deprive  anyone,  even  if  he  be  the  subject  of  charity,  of  the  right  to 
vote  somewhere  on  election  day;  but  the  presumption  is  that,  being 
an  inmate  of  a  public  institution  of  this  character,  he  is  not  a  resi- 
dent of  the  district  in  which  that  institution  is  located,  and  that  he  is 
presumed  to  vote  elsewhere.  He  may  rebut  that  presumption,  even 
under  the  decision  in  io7th  New  York,  upon  showing  the  fact  to  be 
that  he  has  no  other  residence.  But  the  inhabitants  of  that  particu- 
lar district  are  guarded  and  protected  against  a  tremendous  mass  of 
votes  being  thrust  upon  them  to  the  extent,  at  least,  of  being  able  to 
put  each  inmate  of  such  institution  upon  his  voir  dire  to  say  whether 
he  has  any  other  home,  and  if  he  has  any  other  home,  to  insist  upon 
it  that  his  vote  shall  be  cast  at  his  true  residence,  and  not  at  the 
residence  that  he  has  acquired  as  an  object  of  charity.  It  is  but  just 
that  you  should  protect  the  various  districts  of  the  State  against 
inroads  of  this  character.  I  do  not  speak  of  any  particular  abuse, 
but  if  the  case  may  be  that  in  the  name  of  charity  you  were  to  gather 
together  thousands  of  men  and  locate  them  anywhere,  and  then  have 
them  vote  in  that  particular  district,  without  having  any  interest  in 


August  20.]  CONSTITUTIONAL  CONVENTION.  871 

the  place  or  in  the  affairs  of  the  community  that  surrounds  them, 
you  are,  in  the  name  of  charity,  doing  a  grievous  injustice  to  the 
honest  residents  of  that  particular  section;  and  it  is  against  that 
abuse  that  the  constitutional  amendment,  as  it  originally  read,  was 
aimed. 

Mr.  Moore  —  Mr.  Chairman,  I  would  like  to  ask  the  gentleman 
a  question,  if  there  is  any  provision  of  law  for  getting  those  cripples 
back  to  their  homes  where  they  can  vote? 

Mr.  Lauterbach  —  I  know  of  no  legislative  provision,  but  there  is 
no  difficulty  in  enacting  it  if  it  is  desired.  What  ought  to  be  done 
for  the  purpose  of  carrying  out  the  objects  of  the  constitutional 
amendment,  I  do  not  know.  The  question  has  been  mooted  in  the 
Suffrage  Committee  in  respect  to  the  Soldiers'  Home,  but  there  is  no 
difficulty  in  providing  that  the  vote  may  be  transmitted  by  mail,  or 
otherwise  disposed  of.  That  is  another  question.  I  think  everyone 
agrees  with  me  that  no  locality  ought  to  be  deprived  of  its  legitimate 
vote  by  the  casting  of  the  vote  of  those  who  are  foreign  to  that 
locality.  Now,  if  they  are  not  foreign,  if  that  is  their  home,  all 
they  have  to  do  is  to  make  proof  of  that  fact  and  they  become 
localized. 

Mr.  Holcomb  —  Mr.  Chairman,  may  I  ask  the  gentleman  a  ques- 
tion? Was  there  ever  any  question  raised  in  reference  to  a  soldier 
that  went  into  the  military  service,  or  a  sailor  that  went  into  the 
merchant  marine  and  risked  his  life 

Mr.  Lauterbach  —  It  may  be  that  he  has  risked  his  life,  that  he 
has  become  a  soldier  or  a  sailor,  and  that  he  is  being  very  properly 
cared  for  in  one  of  these  homes,  but  that  his  identity  is  not  really 
at  Bath,  but  in  the  city  of  New  York,  or  that  his  identity  of  location 
ought  not  to  be  at  Sailors'  Snug  Harber,  but  at  Buffalo,  or  some 
other  city  in  the  State. 

Mr.  Holcomb  —  Is  there  any  difference  in  the  identity  of  the 
interests  of  a  citizen  whether  he  dwell  in  the  city  of  New  York  or 
in  Steuben  county,  when  you  are  talking  about  the  interest  of  the 
State  of  New  York?  I  don't  understand  it  so. 

Mr.  Lauterbach  —  Certainly  I  am  not  talking  for  an  election  for 
Governor  or  President,  but  undoubtedly  and  undeniably  the  life- 
long resident  or  the  real  resident  of  a  community,  who  is  interested 
in  the  personality  of  his  Member  of  Assembly  or  of  his  State  Sena- 
tor, or  of  some  other  officer  to  a  very  great  extent  and  in  a  very 
different  direction  from  a  resident  of  another  section  of  the  State, 
and  that  must  be  conceded.  Now,  what  is  the  point  that  is  sought 
to  be  covered  by  this  amendment?  There  are  certain  institutions 


872  REVISED  RECORD.  [Monday, 

which  are  not  looked  upon  as  asylums  within  the  terms  of  the  stat- 
ute. Take  the  Sailors'  Snug  Harbor,  for  instance;  I  believe  it 
receives  no  money  from  public  sources.  It  is  entirely,  or  partly, 
supported  from  private  charity,  from  a  private  endowment,  and  it 
has  been  held  that  that  institution  is  not  within  the  statute,  and  it  is 
in  order  to  bring  that  institution  within  the  statute  that  this  amend- 
ment is  passed,  adding  the  words,  "  or  institution  wholly  or  partly 

.supported,"  and  the  words,  "or  by  charity." 

This  is  not  new  legislation ;  it  is  simply  amplifying  terms  so  as  to 

•  cover  that  particular  case  and  other  cases.  Take,  for  instance,  the 
Home  for  Aged  and  Infirm  Hebrews,  at  One  Hundred  and  Fourth 
street,  New  York,  of  which  I  am  a  director.  You  bring  from  all 
sections  of  the  State  people  who  have  no  identity  or  interest  in  that 
particular  locality.  Most  of  them  come  from  the  East  side  of  the  city, 

.and  know  the  personnel  of  the  people  upon  that  side;  their  interests 
are  entirely  with  that  section  of  the  city,  and  yet,  by  having  seven  or 
eight  hundred  people,  who  are  inmates  of  that  particular  institution, 
an  election  of  aldermen  may  be  changed.  The  personnel  of  the 
Assemblyman  who  is  to  be  returned  to  Albany  may  be  turned  in  a 

^direction  different  from  that  which  the  majority  of  the  voters  of  the 
district  would  have  directed  it.  You  are  gathering  together  from  the 
highways  and  by-ways  of  the  city,  in  one  particular  district,  a  num- 

.ber  of  people,  who  are,  for  the  purposes  of  this  discussion,  absolutely 
foreign  to  the  interests  of  the  locality  in  which  they  are  voting. 
Now,  why  is  it  not  a  just  thing  to  say  that  the  inmates  of  the  Home 

,for  Aged  and  Infirm  Hebrews  shall  not,  on  the  Tuesday  in  Novem- 
ber, when  this  election  is  to  take  place,  vote  here,  but  that  they  shall 

\vote  in  Rivington  street,  or  Twenty-third  street,  or  Seventy-eighth 
street,  or  wherever  their  real  habitation  is?  Now,  what  is  the  habi- 
tation? If  they  have  a  family,  they  are  localized  at  the  place  of  resi- 
dence of  the  family.  If  they  have  no  family,  and  have  no  residence, 
and  claim  no  other  residence,  they  are  not  disfranchised.  They  may 

(then  go  before  the  election  inspector  and  swear  that  the  only  home 
.that  they  have  is  One  Hundred  and  Fourth  street  and  Tenth  ave- 
:nue,  in  the  city  of  New  York,  and  they  may  vote,  and  still  perpe- 
trate what  is  a  wrong,  that  of  bringing  a  concentrated  pauper  vote, 

•or  quasi-pauper  vote,  to  control  local  interests,  which  is  an  injustice 
to  the  residents  of  that  particular  district.  In  other  words,  if  you 
desire  to  do  charity,  do  it;  but  do  not  do  it  at  the  expense  of  the 
rights  of  those  in  whose  neighborhood,  you  may  establish  your 

•charitable  institution. 

Mr.  Hotchkiss  —  Mr.  Chairman,  I  should  feel  that  it  was  a  dis- 
tinct misfortune  if  this  amendment  should  not  pass.     Now,  sir,  I 


August  20.]  CONSTITUTIONAL  CONVENTION.  873 

have  had  considerable  personal  experience  in  the  matter  covered  by 
it.  In  1892,  and  in  1893,  I  happened  to  be  of  counsel  for  the  city 
of  New  York  in  a  number  of  what  were  called  election  cases,  where 
the  right  to  vote  of  some  four  hundred  inmates  of  a  public  institution 
was  questioned,  and  leading  counsel  were  employed  in  their  behalf. 
Under  those  circumstances,  I  came  to  give  some  considerable  atten- 
tion to  this  subject  embraced  within  this  proposed  amendment.  I 
hope  that  the  Convention  has  given  due  weight  to  what  Mr.  Lauter- 
bach  has  said.  This  amendment  will  deprive  no  one  of  his  vote  in 
the  locality  where  he  belongs  and  where  he  ought  to  vote.  It  sim- 
ply deprives  him  of  his  vote  in  the  locality  or  district  where,  by  acci- 
dent, or  by  the  chances  of  his  life  and  the  charity  which  has  been 
extended  to  him,  he  has  become  located,  and  it  deprives  him,  in 
those  localities,  of  the  opportunity  and  the  abuse  of  plumping  en 
masse  those  votes  affecting  local  questions  from  people  who  have 
absolutely  no  interest  at  all  in  the  locality.  While  it  is  suggested 
by  my  colleague  from  New  York  that  it  perhaps  might,  in  some 
instances,  deprive  a  person  of  the  right  to  vote  upon  national  ques- 
tions or  upon  State  questions,  where  the  mere  question  of  locality 
where  he  voted  would  be  immaterial,  it  is,  however,  distinctly  in 
the  interest  of  the  locality  where  they  are  residing  in  an  institution, 
that  they  should  be  deprived  of  the  right  to  vote  upon  all  local  mat- 
ters. It  is  possible  that  by  some  amendment,  by  some  direction, 
-possibly  of  the  Legislature,  it  might  be  that  upon  national  questions 
and  State  questions  they  might  be  permitted  to  vote  from  the  insti- 
tution, but,  so  far  as  the  amendment  seeks  to  deprive  them  of  the 
opportunity  to  vote  in  the  locality  where  the  institution  is  located, 
it  will  correct  very  many  grave  abuses.  What  has  been  referred  to 
on  Staten  Island  is  familiar  to  most  of  us  who  live  in  New  York 
and  have  paid  any  attention  to  Staten  Island  affairs  during  the  last 
fifteen  years.  I  venture  to  say  that  there  has  not  been  a  local  or  a 
State  election  or  a  national  election  on  Staten  Island  in  the  last 
twenty  years  when  there  have  not  been  frauds  and  all  kinds  of  diffi- 
culties growing  out  of  the  voting  of  the  inmates  of  the  Sailors'  Snug 
Harbor,  and  more  than  that,  it  has  been  charged,  and  in  very  many 
instances  it  has  been  proved,  that  these  old  sea  captains,  for  an  allow- 
ance of  tobacco  or  grog  or  cash  have  gone  up  to  the  polls  and 
almost  solidly  cast  their  votes  in  the  way  they  have  been  directed. 

Mr.   Holcomb  —  Mr.   Chairman,  may   I   ask   the   gentleman  a 
question? 

The  Chairman  —  Will  the  gentleman  give  way  for  a  question? 
Mr.  Hotchkiss  —  Oh,  yes. 


874  REVISED  RECORD.  [Monday, 

Mr.  Holcomb  —  I  would  ask  if  the  gentleman  is  now  speaking  of 
his  own  knowledge  in  respect  to  how  these  votes  are  purchased  or 
not? 

Mr.  Hotchkiss  —  In  reply  to  the  gentleman,  I  would  say  that  I 
have  never  bought  any  votes,  and  I  never  had  occasion  to  sell  a 
vote,  but  I  am  taking  what  I  give  to  the  Convention  from  what  has 
been  currently  reported  in  the  newspapers  and  what  friends  and 
neighbors  living  on  Staten  Island  have  in  frequent  coversation 
reported  to  me  as  being  a  matter  beyond  any  question  at  all. 

Mr.  Burr  —  Mr.  Chairman,  I  desire 

Mr.  Holcomb  —  Mr.  Chairman,  I  would  like  my  amendment 
reported. 

The  Chairman  —  The  Chair  recognizes  Mr.  Burr. 
Mr.  Holcomb  —  My  amendment  is  before  the  House.     Can  I 
have  it  reported? 

The  Chairman  —  The  Clerk  will  read  it. 

The  Clerk  read  Mr.  Holcomb's  amendment  as  follows: 
"  Add  at  the  end  of  line  ten :  '  The  provisions  hereof  shall  not  be 
construed  to  affect  soldiers  who  may  be  inmates  of  State  soldiers' 
homes,  or  sailors  who  dwell  upon  the  Sailors'  Snug  Harbor  founda- 
tion in  Richmond  county,  or  like  institutions.'  " 

Mr.  Burr  —  Mr.  Chairman,  I  offer  a  substitute  for  that. 
Mr.  Lauterbach  —  May  I  ask  Mr.  Holcomb  a  question? 
The  Chairman  —  Mr.  Burr  has  the  floor. 

Mr.  Burr  —  I  offer  this  as  a  substitute  for  the  whole  matter 

Mr.  Lauterbach  —  Mr.  Burr,  can  I  ask  you  a  question,  then? 
Mr.  Burr  —  Yes,  sir. 

Mr.  Lauterbach  —  Do  you  desire  that  the  decision  of  the  Court 
of  Appeals,  in  107  N.  Y.,  should  be  eliminated  by  your  proposed 
amendment,  and  that  the  soldiers  at  Bath  shall  be  permitted  to  vote 
at  Bath  upon  local  issues,  without  any  question  as  to  their 
residence? 

Mr.  Burr  —  No,  sir. 

Mr.  Lauterbach  —  That  would  be  the  effect  of  your  amendment, 

Mr.  Burr  —  No,  sir.  Upon  national  and  State  affairs  they  shall 
be  permitted  to  vote;  that  is  all.  If  you  will  listen  to  my  substitute 
you  will  see  that  it  is  so. 

The  Chairman  —  The  Clerk  will  read  the  substitute  of  Mr.  Burr. 


August  20.]  CONSTITUTIONAL  CONVENTION.  875 

The  Clerk  read  Mr.  Burr's  substitute  as  follows : 

"  Section  3  of  article  2  of  the  Constitution  is  hereby  amended  so 
as  to  read  as  follows: 

"  Sec.  3.  For  the  purpose  of  voting  no  person  shall  be  deemed  to 
have  gained  or  lost  a  residence,  by  reason  of  his  presence  or  absence, 
while  employed  in  the  service  of  the  United  States,  nor  while 
engaged  in  the  navigation  of  the  waters  of  this  State,  or  of  the 
United  States,  or  of  the  high  seas ;  nor  while  a  student  of  any  semi- 
nary of  learning;  nor  while  kept  at  any  alms-house  or  other  asylum, 
at  public  expense;  nor  while  confined  in  any  public  prison;  provided, 
however,  that  the  residence  of  any  honorably  discharged  soldier  or 
sailor  of  the  late  civil  war  at  any  soldiers  or  sailors'  home  in  the 
State,  as  an  inmate  thereof,  must  be  deemed  a  residence  for  the 
purpose  of  voting  for  national  or  State  officers,  within  the  meaning 
of  section  i  of  this  article,  and  such  home  shall  be  deemed  an  asy- 
lum within  the  meaning  of  this  section." 

Mr.  Moore  —  Mr.  Chairman,  I  rise  to  a  point  of  order. 

The  Chairman  —  The  amendment  offered  by  Mr.  Holcomb  is 
before  the  committee,  and  after  that  is  disposed  of,  then  Mr.  Burr's 
substitute  would  be  up. 

Mr.  Acker  —  Mr.  Chairman  and  gentlemen,  I  am  in  favor  of  this 
amendment  for  one  reason,  and  this  is  not  any  fictitious  story  or  cre- 
ation of  the  imagination.  I  believe  that  this  proposition  puts  the 
soldiers  and  sailors,  whom  so  many  of  us  seem  to  take  such  a  great 
interest  in,  in  the  same  position  that  it  has  placed  our  sons  who  are 
attending  college.  The  young  man  at  Cornell  University  may  elect 
to  make  that  his  residence*  and  vote  in  the  village  of  Ithaca,  but  if 
he  does  not  do  that,  and  desires  to  return  home,  he  may  go  and 
vote  at  his  own  home.  Now,  in  my  own  city,  one  of  my  neighbors, 
an  old  soldier,  found  it  necessary  to  go  over  to  Bath  and  have  one 
of  his  feet  amputated.  He  was  over  there  some  six  or  eight  months. 
When  he  got  back  home,  just  before  election,  he  desired  to  engage 
and  act  his  part  as  a  citizen  of  that  city,  but  somebody  stepped  up 
before  him  and  said:  "You  have  been  absent  six  months,  and, 
therefore,  you  cannot  vote;  you  have  not  resided  in  this  election  dis- 
trict within  three  months,"  and  so  the  old  man  had  to  swear  in  his 
vote.  Now,  this  proposition,  as  it  is  proposed  to  amend  the  Consti- 
tution, puts  him  on  an  equal,  and  he  can  still  retain  his  residence 
and  vote  at  home  where  he  wants  to ;  and  I  can  see  no  reason  why, 
if  he  desires  to  make  his  home  in  Bath  permanently,  he  may  not  vote 
there.  He  cannot  vote  in  two  places,  but  he  may  return  and  vote 
in  the  village  where  his  home  is,  if  he  wants  to.  If  these  people,  who 


876  REVISED  RECORD.  [Monday, 

are  so  anxious  because  a  man  is  old  and  cannot  go  to  his  home  at  a 
national  election,  are  not  satisfied,  why,  we  can  do  as  we  do  by  the 
students  —  take  up  a  contribution  and  pay  their  expenses,  and  let 
them  go  back  to  their  homes  and  friends  and  vote  there.  Those  are 
the  only  places  where  they  should  be  allowed  to  vote,  and  this 
amendment  does  not  prevent  them  from  voting  there. 

Mr.  Root  —  Mr.  Chairman,  I  hope  this  amendment  will  pass 
exactly  as  it  has  been  reported.  It  introduces  no  new  principle.  It 
merely  covers  an  omitted  case  in  the  provision  of  the  Constitution 
which  we  now  have,  and  which  is  uniformly  approved.  It  puts  the 
inmates  of  institutions  which  are  upon  private  foundations  in  the 
same  position  as  members  of  our  institutions  of  learning,  and 
relieves  many  communities  in  this  State  from  the  incubus  of  a  great 
body  of  voters  who  can  overcome  the  votes  of  the  general  citizens, 
and  who  yet  have  no  interest  in  the  governmental  affairs  of  the  com- 
munity, but  are  more  interested  in  having  plenty  of  rum  and  tobacco 
and  other  comforts  in  the  institutions  than  they  are  in  the  good  gov- 
ernment of  the  community. 

Mr.  Holcomb  —  May  I  ask  the  gentleman  a  question? 

The  Chairman  —  Will  Mr.  Root  give  way  for  a  question? 

Mr.  Root  —  I  will  give  way  to  a  question. 

Mr.  Holcomb  —  I  would  like  to  ask  the  gentleman  whether  his 
proposition  that  these  people  have  no  pecuniary  and  monetary  inter- 
est in  their  localities  is  not  deliberately  placing  the  property  qualifi- 
cation upon  the  right  of  the  franchise  in  this  State? 

Mr.  Root  —  My  proposition  was  not  that  they  had  no  pecuniary 
interest.  My  proposition  was  that  they  have  no  interest  in  the 
government  of  the  locality,  but  interest  solely  in  the  govern- 
ment of  the  institution  where  they  are.  Their  interests  properly 
are  in  the  homes  from  which  they  came,  and  to  which  they 
should  return  to  vote,  just  as  our  students  do  from  our  institutions 
of  learning. 

Mr.  O'Brien  —  Mr.  Chairman,  I  desire  to  state  simply  this,  in 
answer  to  the  gentleman  from  New  York  (Mr.  Holcomb),  that  the 
Constitution  does  not  guarantee  to  every  man  an  opportunity  to 
vote;  it  gives  him  only  the  right  to  vote,  and,  therefore,  we  cannot 
say  that  every  man  shall  have  the  chance  to  cast  his  vote.  For  a 
hundred  reasons  a  man  may  be  deprived  of  his  vote.  Poverty  may 
deprive  him  of  his  vote.  In  a  dozen  different  ways  he  may  be 
deprived  of  it.  He  may  be  absent  from  his  home  and  unable  to  pay 
his  way  back.  Some  of  our  best  young  men  may  be  at  institutions 
of  learning  and  unable  to  pay  their  way  home.  They  are  deprived 


August  20.]          CONSTITUTIONAL  CONVENTION.  877 

of  the  opportunity  of  voting,  but  they  are  not  deprived  of  their  right 
to  vote.  And  so  it  is  in  this  case,  we  do  not  deprive  any  man  of  his 
right  to  vote.  We  deprive  him  simply  of  the  opportunity  to  vote 
if  circumstances  happen  to  deprive  him  of  his  opportunity.  We 
give  him  his  right  to  vote.  We  leave  his  right  to  vote  unchanged. 
I  hope,  sir,  that  this  amendment  will  pass  just  as  it  is  reported. 

Mr.  Holcomb  —  May  I  ask  the  gentleman  a  question? 

Mr.  O'Brien  —  Yes,  sir. 

Mr.  Holcomb  —  I  would  like  to  ask  this.  Suppose  that  poverty 
might  deprive  a  man  of  his  vote,  is  there  any  reason  why  a  citizen 
should  be  deprived  of  his  right  to  vote  because  he  has  served  his 
country  in  the  merchant  marine  or  in  the  navy  or  in  the  army? 

Mr.  O'Brien  —  Certainly  not. 

Mr.  Holcomb  —  It  is  not  a  question  of  poverty  at  all.  It  is  a 
question  whether  these  men  should  be  deprived  of  their  votes 
because  they  did  their  duty  at  the  call  of  their  country. 

Mr.  Moore  —  Mr.  Chairman,  I  think  gentlemen  take  a  wrong 
view  of  this  proposed  amendment  if  they  even  imagine  that  it  pro- 
poses to  deprive  any  man  of  his  right  to  vote.  With  all  due  respect 
to  my  friend  on  the  other  side,  Mr.  Holcomb,  of  New  York,  I  must 
oppose  his  amendment,  as  I  think  it  false  in  principle  and  false  to 
the  theory  upon  which  this  section  3  of  article  2  of  the  Constitution 
is  based.  This  simply  gives  to  the  inmate  of  any  of  these  homes 
mentioned  in  section  3  of  article  2  the  right  to  vote  in  the  places 
where  they  live,  and  does  not  compel  them  to  vote  as  inmates  of 
the  institutions  where  they  may  be  at  the  time  of  the  election.  I  am 
in  favor  of  this  amendment,  Mr.  Chairman,  exactly  as  the  committee 
have  reported  it,  and  I  hope  it  will  be  adopted  by  the  committee. 

Mr.  Dean  —  Mr.  Chairman,  I  believe  this  committee  is  as  unani- 
mous in  support  of  this  proposition  as  it  was  against  mine.  I, 
therefore,  move  that  we  rise  and  report  this  to  the  Convention,  and 
recommend  its  adoption. 

The  Chairman  —  That  would  be  out  of  order  at  present,  because 
the  question  is  on  Mr.  Holcomb's  amendment. 

Mr.  Nichols  —  Mr.  Chairman,  there  is  something  that  may  be 
said  which  will  tend  to  a  right  conclusion  of  this  matter  that  has 
not  yet  been  presented.  The  soldiers  in  the  Soldiers'  Home  at  Bath 
for  ten  years  exercised  the  right  of  franchise  in  our  community. 
For  ten  years  our  local  affairs  were  dominated  by  a  class  of  men 
who  had  no  interest  whatever  in  the  property  of  the  community, 
who  were  entirely  unacquainted  with  the  candidates  for  whom  they 


878  REVISED  RECORD.  [Monday, 

voted,  and  who  cared  nothing  about  the  result  of  the  election, 
except  so  far  as  it  might  have  been  along  party  lines.  Both  parties 
were  satisfied  that  that  course  of  dealing  was  unfair  to  the  community 
and  was  debauching  to  the  soldiers.  It  therefore  became  necessary 
to  present  this  question  to  the  courts,  and  out  of  that  grew  the  case 
of  Silvey  v.  Lindsay,  reported  in  107  N.  Y.  Since  that  time  there 
has  been  no  effort  on  the  part  of  non-resident  soldiers  to  vote.  Since 
that  time  there  has  been  absolute  quiet  at  the  polls.  The  Home  has 
been  protected  in  all  its  parts  by  the  State.  The  legislative  and 
executive  departments  have  given  it  whatever  was  necessary.  And 
there  those  men  have  lived  comfortably,  quietly,  peaceably  and  as 
respected  citizens.  Now,  the  soldiers  are  not  deprived  of  the  right 
to  vote  by  reason  of  being  inmates  of  that  institution.  They  go, 
and  have  gone  during  the  five  or  six  years  since  they  were  excluded 
from  participating  in  our  elections  at  Bath,  to  their  respective  places 
of  residence.  Troy,  Albany,  New  York  city,  Rochester,  Buffalo, 
every  part  of  this  great  State  is  represented  there,  and  to  their 
respective  localities  they  have  from  year  to  year  gone,  where  they 
have  exercised  this  right,  where  their  families  live,  where  their  chil- 
dren are  growing  up,  and  where  their  property  is  located.  I  con- 
tend upon  this  proposition,  not  only  that  they  ought  not  to  vote  in 
Bath,  but  that  it  is  your  duty  to  retain  their  residence  where  they  see 
fit  to  choose  it,  where  they  can  do  the  most  good  for  their  families, 
where  they  can  contribute  something  by  their  voice  to  the  choice  of 
instructors  for  their  children  and  the  management  of  the  local  affairs 
in  which  they  have  a  right  to  be  interested.  I  am  handed  by  Mr. 
Parkhurst  this  resolution  —  and  this  comes  from  the  board  of  mana- 
gers of  the  Home,  largely  Democratic,  I  think,  at  the  time  this  was 
passed,  and,  I  believe,  entirely  Democratic  now,  and  I  want  to  say 
to  you  that  I  have  yet  to  hear  one  of  the  members  of  that  board  of 
trustees  say  that  those  men  ought  to  be  fixed  as  a  charge  politically 
upon  the  town  of  Bath  or  the  county  of  Steuben.  Now,  this  resolu- 
tion reads  as  follows: 

"  Resolved,  That  in  the  judgment  of  this  board  the  charge  made 
against  the  managers  of  the  Home  originated  in  personal  and  politi- 
cal differences  and  antagonisms  among  people  residing  at  Bath. 
The  opinion  of  the  Attorney-General  of  the  State,  sent  to  the  board 
in  1879,  to  tne  effect  that  the  inmates  of  the  Home  are  entitled  to 
vote  at  all  elections,  thereby  virtually  placing  the  management  of 
local  affairs  in  the  town  of  Bath  and  the  election  of  representatives 
in  the  Legislature  from  this  district  in  the  hands  of  these  old  soldiers 
who  are  strangers  to  the  interests  of  this  locality  and  are  supported 
by  the  bounty  of  the  State,  can,  in  our  judgment,  never  result  in 


August  20.]  CONSTITUTIONAL  CONVENTION.  879 

anything  but  evil  in  the  Home,  and  the  town  in  which  it  is 
located." 

That  was  passed  by  nearly  a  unanimous  vote.  General  Slocum 
was  chairman  of  the  board.  General  Quinby,  of  Rochester,  was  a 
member.  Mr.  Taggart  was  a  member.  Mr.  Rogers,  the  present 
manager  of  the  Home,  a  Democrat,  and  a  resident  of  the  city  of 
Buffalo,  was  a  member.  William  E.  Howell,  also  a  resident  of  Bath; 
John  Palmer,  the  Secretary  of  State  at  present,  and  another,  now 
deceased,  with  one  dissenting  voice,  and  that  was  Mr.  Rockwell,  of 
Elmira.  Now,  this  proposition  went  to  the  court,  and  the  Court  of 
Appeals,  in  its  opinion  upon  the  subject,  stated  as  follows: 

"  We  have  no  doubt  that  the  institution  in  question  is  within 
purview  of  the  constitutional  provision  above  referred  to.  It  is  an 
asylum  supported  at  the  public  expense,  and  its  members  are  within 
the  mischief  against  which  that  provision  is  aimed,  the  participation 
of  an  unconcerned  body  of  men  in  the  control,  through  the  ballot- 
box,  of  the  municipal  affairs,  in  whose  further  conduct  they  have 
no  interest,  and  from  the  mismanagement  of  which,  by  the  officers 
their  ballots  might  elect,  they  sustain  no  injury.  But  the  question 
in  each  case  is  still  as  it  was  before  the  adoption  of  the  Constitution, 
one  of  domicile  or  residence  to  be  decided  upon  all  the  circumstances 
of  the  case.  The  provision  (art.  2,  sec.  3)  disqualifies  no  one;  con- 
fers no  right  upon  any  one.  It  simply  eliminates  from  those  circum- 
stances the  fact  of  presence  in  the  institution  named  or  included 
within  its  terms.  It  settles  the  law  as  to  the  effect  of  such  presence, 
and  as  to  which  there  had  been  before  a  difference  of  opinion,  and 
declares  that  it  does  not  constitute  a  test  of  right  to  vote,  and  is  not 
to  be  so  regarded.  The  person  offering  to  vote  must  find  the  requis- 
ite qualifications  elsewhere." 

That  is  found  at  page  60,  107  N.  Y.,  the  case  of  Silvey  v.  Lindsay, 
opinion  of  Judge  Danforth,  all  the  judges  concurring.  Now,  it  was 
under  that  decision  that  this  mooted  question  which  had  troubled 
our  community  and  agitated  the  soldiers  at  the  Home  was  deter- 
mined, and,  as  I  have  said,  the  determination  was  for  the  benefit  of 
two  classes.  First,  the  State,  in  which  they  have  chosen  residence, 
and,  secondly,  the  inmates  of  the  Home  themselves.  They  are 
better  off.  They  are  better  protected  by  the  Constitution  as  it  is, 
than  by  the  exception  which  the  gentleman  from  New  York  (Mr. 
Burr)  seeks  to  engraft  upon  it.  But,  one  word  with  regard  to  the 
proposition  which  has  been  submitted 

Mr.  Holcomb  —  The  question  is  not  are  we  better  protected  under 
the  existing  Constitution.  The  question  is  how  will  they  be  pro- 
tected under  the  Constitution  as  it  is  proposed  to  be  amended  here. 


880  REVISED  RECORD.  [Monday, 

Mr.  Nichols  —  That  simply  extends  the  provision  of  the  Constitu- 
tion as  it  is  now  to  other  institutions.  I  do  not  think  it  makes  any 
difference  to  any  member  of  the  Home  to-day  whether  the  proposi- 
tion is  passed  or  not,  as  proposed  by  Mr.  O'Brien.  But  the  same 
principle  that  prevails  in  the  case  of  the  Soldiers'  Home  at  Bath  is 
clearly  applicable  and  with  equal  force  to  other  institutions  of  a  like 
nature  throughout  the  State.  The  amendment  that  Mr.  Burr  pro- 
poses is  an  anomalous  one,  though  it  may  strike  one  at  first  as 
having  some  force  to  it,  but  it  seems  to  me  absolutely  dangerous  and 
open  to  criticism — that  the  proposition  involves  the  political  division 
of  a  man  and  that  cannot  be  done.  He  proposes  to  let  the  soldier 
vote  in  Bath  on  State  and  national  issues.  Where  shall  he  go  to 
vote  for  county  officers?  He  has  not  the  right  to  do  it  in  Bath.  If 
you  give  him  the  right  to  vote  in  Bath  on  State  and  national  offi- 
cers, you  must  deprive  him  of  the  right  to  go  elsewhere  and  vote 
for  local  officers.  How  will  you  meet  the  proposition?  He  must 
either  be  left  to  the  town  of  Bath,  or  the  locality  wherein  it  may  be 
that  the  institution  is  located,  or  he  must  be  sent  back  to  his  home, 
as  is  done  in  very  many  instances  now,  and  permitted  to  cast  his 
ballot  there.  I  hope,  above  all  things,  that  the  amendment  to  the 
proposed  amendment  may  not  receive  favorable  consideration,  or 
at  least  approval,  at  the  hands  of  this  Convention.  It  will  be  abso- 
lutely destructive  to  the  rights  which  you  seek  to  preserve  —  the 
rights  of  the  citizen  who  is  the  soldier,  on  the  one  hand,  and  the 
public  on  the  other. 

Mr.  Hamlin  —  I  move  that  the  committee  do  now  rise  and  report 
to  the  Convention,  recommending  the  passage  of  the  amendment. 

The  Chairman  —  That  is  out  of  order.  We  have  got  to  dispose 
of  Mr.  Holcomb's  amendment  first. 

Mr.  Maybee  —  Mr.  Chairman,  I  hope  the  constitutional  amend- 
ment will  not  be  favorably  reported.  I  had  supposed  that  the 
Republican  party  was  very  solicitous  of  the  interests  of  the  old  sol- 
dier, but  it  seems  that  I  was  mistaken  in  that  view.  I  do  not  believe 
that  when  a  man  has  spent  the  better  part  of  his  life,  perhaps,  in 
fighting  the  battles  of  his  country,  and  because  in  his  old  age  he  is 
so  unfortunate  as  to  become  poor  and  obliged  to  go  to  a  State  insti- 
tution and  be  supported  by  public  charity,  that  he  should  be 
deprived  of  the  opportunity  to  vote.  To  deprive  him  of  the  oppor- 
tunity to  vote  is  practically  to  deprive  him  of  the  right  to  vote.  I 
do  not  think  that  the  fact  that  a  man  has  been  patriotic  enough  to 
go  on  the  battlefield  or  on  the  high  seas  and  fight  for  the  flag  of  the 
republic  ought  to.  work  his  disfranchisement.  When  a  man  has  for 


August  20.]  CONSTITUTIONAL  CONVENTION.  881 

years  spent  his  life  on  the  ocean  wave  and  made  his  home  on  the 
rolling  deep,  and  has  been  unfortunate  enough  to  become  poor  in 
his  old  age,  and  to  be  confined  in  the  Sailors'  Snug  Harbor,  or  in 
any  other  similar  institution,  I  do  not  think  he  ought  to  be  deprived 
of  the  right  or  the  opportunity  to  vote,  and  it  seems  to  me  that  this 
proposed  amendment  would  practically  disfranchise  a  large,  worthy 
and  respectable  class  of  our  fellow-citizens.  I  do  not  believe  that 
principle  ought  to  receive  the  sanction  of  this  Convention,  and  I 
hope  that  at  the  very  least,  Mr.  Burr's  amendment  will  be  tacked  on 
to  the  proposed  constitutional  provision  if  it  goes  back  to  the 
Convention. 

Mr.  O'Brien  —  I  move  that  the  committee  now  rise  and  report  to 
the  Convention,  with  the  recommendation  that  this  amendment  be 
passed;  and  I  wish  to  call  the  Chair's  attention  to  a  point  of  order, 
and  that  is  that  a  motion  of  this  kind  cuts  off  all  further  amendments 
and  all  debate. 

The  Chairman  —  The  Chair  rules  that  you  cannot  dispose  of  it 
in  that  way  until  you  vote  on  Mr.  Holcomb's  amendment.  The 
question  before  the  committee  now  is  on  Mr.  Holcomb's  amendment. 

The  Chairman  put  the  question  on  Mr.  Holcomb's  amendment, 
and  it  was  lost. 

The  Chairman  —  The  question  is  now  on  the  substitute  pre- 
sented by  Mr.  Burr.  The  Secretary  will  read  it. 

The  Secretary  read  the  substitute  offered  by  Mr.  Burr  as  follows : 
Section  3  of  article  2  of  the  Constitution  is  hereby  amended  so  as 
to  read  as  follows: 

Sec.  3.  For  the  purpose  of  voting  no  person  shall  be  deemed  to 
have  gained  or  lost  a  residence,  by  reason  of  his  presence  or  absence, 
while  employed  in  the  service  of  the  United  States,  nor  while 
engaged  in  the  navigation  of  the  waters  of  this  State,  or  of  the 
United  States,  or  of  the  high  seas;  nor  while  a  student  of  any 
seminary  of  learning;  nor  while  kept  at  any  alms-house,  or  other 
asylum  at  public  expense,  nor  while  confined  in  any  public  prison, 
provided,  however,  that  the  residence  of  any  honorably  discharged 
soldier  or  sailor  of  the  late  civil  war,  at  any  soldiers  or  sailors'  home 
in  the  State,  as  an  inmate  thereof,  must  be  deemed  a  residence  for 
the  purpose  of  voting  for  national  or  State  officers,  within  the  mean- 
ing of  section  one  of  this  article,  and  such  home  shall  not  be 
deemed  an  asylum  within  the  meaning  of  this  section. 
56 


REVISED  RECORD.  [Monday, 

The  Chairman  —  Is  the  house  ready  for  the  question  upon  this 
substitute? 

Mr.  Burr —  Mr.  Chairman,  I  can  hardly  believe  the  fact  that  a  man 
has  spent  the  greater  or  the  better  part  of  his  life  in  extending  the 
naval  supremacy  of  the  United  States  or  of  the  State  of  New  York, 
or  of  advancing  the  commerce  of  this  State,  should  be  alleged  as  a 
justifiable  reason  against  his  exercising  the  fullest  and  freest  power 
of  the  ballot.  If  a  man,  after  twenty-one  years  displaying  the  power 
of  the  United  States  in  every  part  of  the  world  and  carrying  the 
beauty  of  Old  Glory  and  the  nobility  of  the  principles  it  represents 
into  those  dark  places  where  they  know  nothing  of  the  liberty  which 
animates  and  controls  these  United  States,  and  spreading-  the 
doctrine  of  equal  justice  to  all  men,  if  that  is  to  be  the  reason,  when 
after  that  period,  he  finds  his  battered  hulk  needs  repose  in  some 
sort  of  comfort  at  the  expense  of  the  public  in  a  place  like  the  Sailors' 
Snug  Harbor  on  Staten  Island,  he  is  to  be  deprived  of  the  exercise  of 
the  right  of  suffrage,  I  think  the  people  of  this  State  should  know  it 
now. 

Mr.   Nichols  —  How  are  the  inmates  of  these  institutions  now 

t 

deprived  of  the  right  of  suffrage? 

Mr.  Burr  —  My  amendment  contemplates,  I  would  say  to  Mr. 
Nichols,  as  he  calls  my  attention  to  the  fact,  that  they  should  be 
given  the  right  to  vote  on  State  and  national  affairs,  without  inter- 
fering with  local  affairs,  which  seems  to  be  the  great  bugbear  here. 
The  fact  of  the  matter  is,  gentlemen,  that  an  amendment  of  this 
kind  tacked  on  to  the  Constitution  would  prevent  these  weary,  tired 
and  jaded  defenders  of  the  nation's  honor  and  of  the  State's 
supremacy  from  having  any  vote  at  all,  because  there  is  no  provision 
made  for  taking  them  home  to  the  place  where  they  formerly 
resided  to  vote. 

Mr.  Moore  —  May  I  ask  the  gentleman  a  question? 
Mr.  Burr  —  Certainly,  sir. 

Mr.  Moore  —  Do  you  mean  that  you  would  give  these  men  the 
right  to  vote  in  two  places? 

Mr.  Burr —  I  mean  to  say  if  their  only  residence  upon  this  earth 
is  in  the  asylum  in  which  they  happen  to  be  situated,  that  they 
should  not  interfere  in  local  affairs;  but  do  not  deprive  them  of  a 
voice  in  the  affairs  of  the  State  and  of  the  nation  they  have  done  so 
much  to  defend,  to  honor  and  to  maintain.  If  they  choose  to  do 
so,  let  them  go  back  to  the  places  where  they  may  originally  have 
come  from,  to  their  domicile,  and  there  vote  at  local  elections. 


August  20.]  CONSTITUTIONAL  CONVENTION.  883 

Mr.  Moore  —  Has  not  the  Court  of  Appeals  said  that  their  resi- 
dence is  where  they  came  from,  and  that  they  have  a  right  to  vote 
there  now? 

Mr.  Burr — But  suppose  a  man  has  no  residence  other  than  the 
asylum? 

Mr.  Nichols  —  Then  he  votes  there,  of  course. 

Mr.  Moore  —  Certainly.  Then  he  votes  there,  if  that  is  his  place 
of  residence. 

Mr.  Burr — I  believe  in  giving  to  the  soldier  and  the  sailor  the  right 
to  vote  upon  State  and  national  affairs,  and  if  he  desires  to  go  back 
to  the  place  of  his  former  residence  in  any  other  part  of  the  State 
let  him  go  there  and  vote  upon  local  affairs.  It  seems  to  me  —  of 
course,  I  may  be  mistaken  —  that  this  proposed  apportionment,  of 
which  we  have  read  something,  may  affect  this  very  question.  I 
think  the  kernel  of  the  whole  matter  is  the  fact  that  we  propose  to 
tack  on  Richmond  county  to  Suffolk  county,  and  we  fear  the  vote 
of  the  sailors  in  the  Sailors'  Snug  Harbor  may  in  some  way  inter- 
fere with  the  plans  we  are  about  to  formulate.  I  do  not  know  that 
such  is  the  case,  but  it  would  appear  there  might  be  some  truth  in 
that  statement.  But  upon  you  must  rest  the  responsibility  for 
depriving  these  men  of  their  votes. 

Mr.  I.  S.  Johnson  —  Mr.  Chairman,  I  will  not  detain  the  com- 
mittee but  a  moment.  What  I  wish  to  say,  as  one  having  the  inter- 
ests of  the  old  soldiers  at  heart  as  much  as  any  man  in  this  Conven- 
tion, because  I  know  something  of  what  their  sacrifices  have  been, 
is  this:  I  would  not  for  a  single  moment  consent  to  take  away  a 
single  right  which  they  now  have,  nor  would  I  by  sustaining  the 
amendment  of  the  gentleman  upon  the  other  side,  say  that  they 
should  not  have  the  privilege  of  casting  their  votes  where  they  have 
lived  and  where  they  have  gone  out  into  the  service  of  the  country. 
The  amendment  as  I  understand  it  from  the  gentlemen  would  say 
that  they  shall  not  vote  at  their  homes;  that  they  shall  not  have 
the  privilege  of  going  there  and  casting  their  votes. 

Mr.  Burr  —  I  would  say  to  the  gentleman,  the  amendment  means 
nothing  of  the  kind.  If  it  means  anything  it  means  that  they  may 
vote  on  State  and  national  affairs  where  they  are,  and  if  they  choose 
to  go  and  vote  upon  local  affairs  at  the  places  where  they  may  have 
come  from,  they  shall  be  permitted  to  do  so. 

Mr.  I.  S.  Johnson  —  I  do  not  know  what  the  meaning  of  the 
amendment  is  except  as  I  gather  it  from  its  reading  as  it  is  pre- 
sented here,  and  that  is  that  they  shall  not  be  allowed  to  vote  with 


REVISED  RECORD.  [Monday, 

their  neighbors  and  their  friends  at  home  and  help  build  up  a 
majority  in  the  locality  from  which  they  went  into  service. 

The  Chairman  —  Gentlemen,  the  question  is  on  the  substitute 
offered  by  Mr.  Burr. 

The  Chairman  put  the  question  on  the  substitute  offered  by  Mr. 
Burr,  and  it  was  lost. 

Mr.  O'Brien  —  Mr.  Chairman,  I  now  renew  my  original  motion, 
that  the  committee  rise  and  report  this  proposed  amendment  to 
the  Convention,  with  the  recommendation  that  it  be  passed. 

The  Chairman  put  the  question  on  Mr.  O'Brien's  motion,  and  it 
was  determined  in  the  affirmative. 

The  President  resumed  the  chair. 

Mr.  Schumaker  —  Mr.  President,  the  Committee  of  the  Whole 
have  had  under  consideration  general  order  No.  31  (printed  No. 
399),  introduced  by  Mr.  O'Brien,  entitled,  "  Proposed  constitutional 
amendment  to  amend  section  3  of  article  2  of  the  Constitution,  as 
to  suffrage,"  have  fully  considered  the  same  and  have  directed  me, 
as  chairman,  to  report  the  same  to  the  Convention,  recommending 
its  passage. 

The  President  —  Gentlemen,  you  hear  the  report  of  the  Com- 
mittee of  the  Whole,  recommending  the  passage  of  the  amendment 
as  originally  reported. 

Air.  Burr  —  I  call  for  the  ayes  and  noes. 

The  call  for  the  ayes  and  noes  was  sustained. 

Mr.  Peck  —  Mr.  President,  I  ask  to  be  excused  from  voting,  and 
will  briefly  state  my  reasons.  As  I  understand  it,  this  amendment 
does  not  deprive  -any  individual  of  his  right  to  vote,  but  practically 
it  does  most  effectually  prevent  his  exercising  that  right.  I,  there- 
fore, withdraw  my  excuse  and  vote  no. 

The  Secretary  called  the  roll  and  the  report  of  the  Committee  of 
the  Whole  was  agreed  to  by  the  following  vote: 

Ayes  —  Messrs.  Acker,  Ackerly,  Allaben,  Alvord,  Arnold,  Baker, 
Banks,  Barhite,  Barnum,  Bigelow,  Brown,  E.  A.,  Brown,  E.  R., 
Cady,  Carter,  Cassidy,  Church,  Clark,  G.  W.,  Cookinham,  Cornwell, 
Crosby,  Dean,  Dickey,  Doty,  Durfee,  Emmet,  Floyd,  Foote,  Forbes, 
Francis,  Fuller,  C.  A.,  Fuller,  O.  A.,  Hamlin,  Hill,  Jacobs,  Johnson, 
I.  Sam,  Johnson,  J.,  Kurth,  Lauterbach,  Lester,  Lewis,  C.  H., 
Lewis,  M.  E.,  Lincoln,  Marshall,  McArthur,  McDonough,  Mc- 
Intyre,  McKinstry,  McLaughlin,  C.  B.,  Mereness,  Moore,  Morton, 
Nichols,  Nostrand,  O'Brien,  Osborn,  Parker,  Parkhurst,  Pratt,  Red- 
man, Root,  Schumaker,  Steele,  W.  H.,  Sullivan,  T.  A.,  Sullivan,  W., 


August  20.]  CONSTITUTIONAL  CONVENTION.  885 

Turner,  Vedder,  Vogt,  Wellington,  Whitmyer,  Wiggins,  Wood- 
ward, President  —  72. 

Noes  —  Messrs.  Burr,  Campbell,  Davenport,  Durnin,  Giegerich, 
Gilleran,  Hawley,  Holcomb,  Hottenroth,  Kerwin,  Kimmey,  Marks, 
Maybee,  Ohmeis,  Peabody,  Peck,  Platzek,  Rogers,  Rowley,  Sand- 
ford,  Speer,  Titus,  Truax,  C.  H.,  Veeder  —  24. 

The  President  —  One  o'clock  having  arrived,  the  Convention 
will  take  a  recess  until  three  o'clock. 


AFTERNOON   SESSION. 
Monday  Afternoon,  August  20,  "1894. 
President  Choate  called  the  Convention  to  order  at  three  o'clock. 

The  President  —  The  Secretary  will  proceed  with  the  call  of  gen- 
eral orders. 

The  Secretary  called  general  order  No.  32  (printed  No.  400), 
introduced  by  Mr.  Roche,  prescribing  the  duties  of  citizenship  as 
prerequisite  to  the  right  to  vote. 

Not  moved. 

General  order  No.  33  (printed  No.  401),  introduced  by  Mr.  Gil- 
bert, in  relation  to  the  qualification  of  voters,  was  called. 

Not  moved. 

General  order  No.  34  (printed  No.  402),  introduced  by  Mr. 
Nichols,  relative  to  registration  of  voters,  was  called.- 

Not  moved. 

General  order  No.  35  (printed  No.  407),  introduced  by  Mr.  W.  H. 
Steele,  as  to  restrictions  on  private  and  local  bills,  was  called. 

Not  moved. 

General  order  No.  36  (printed  No.  408),  introduced  by  the  Com- 
mittee on  Corporations,  relating  to  corporations,  was  called. 

Not  moved. 

General  order  No.  37  (printed  No.  412),  introduced  by  Mr. 
Goodelle,  relative  to  criminal  prosecutions,  was  called. 

Not  moved. 

General  order  No.  38  (printed  No.  413),  introduced  by  Mr.  Fran- 
cis, relative  to  religious  liberty,  was  called. 

Not  moved. 

General  order  No.  39  (printed  No.  414),  introduced  by  the  Com- 
mittee on  Preamble,  relating  to  persons  answering  for  capital  and 
otherwise  infamous  crimes,  was  called. 

Not  moved. 


886  REVISED  RECORD.  [Monday, 

General  order  No.  40  (printed  No.  415),  introduced  by  the  Com- 
mittee on  Preamble,  to  amend  article  2,  section  17  of  the  Constitu- 
tion, was  called. 

Not  moved. 

General  order  No.  41  (printed  No.  416),  introduced  by  Mr.  Roche, 
relative  to  distribution  of  the  powers  of  government,  was  called. 

Not  moved. 

General  order  No.  42  (printed  No.  417),  introduced  by  Mr.  Par- 
ker, relative  to  drainage  of  agricultural  land,  was  called. 

Not  moved. 

General   order   No.   43    (printed   No.   419),   introduced   by   Mr. 
Nichols,  relative  to  soldiers  and  sailors'  homes,  was  called. 
Not  moved. 

General  order  No.  44  (printed  No.  420),  introduced  by  Mr.  Foote, 
to  authorize  the  Legislature  to  provide  for  the  construction  of  dams 
and  reservoirs,  was  called. 

Not  moved. 

General  order  No.  45  (printed  No.  422),  introduced  by  the  Judic- 
iary Committee,  to  amend  article  6,  relative  to  the  judiciary,  was 
called. 

Not  moved. 

General  order  No.  46  (printed  No.  423),  introduced  by  Mr.  Gil- 
bert, to  amend  article  3,  to  establish  boards  of  arbitration,  was 
called.  i 

Not  moved. 

General  order  No.  47  (printed  No.  424),  introduced  by  Mr. 
Arnold,  to  amend  article  3,  relative  to  private  and  local  bills,  was 
called. 

Not  moved. 

General  order  No.  48  (printed  No.  425),  introduced  by  the  Com- 
mittee on  Preamble,  to  amend  article  i,  section  10  of  the  Constitu- 
tion, in  relation  to  the  suppression  of  gambling,  was  called. 

Not  moved. 

General  order  No.  49  (printed  No.  426),  introduced  by  Mr.  Marks, 
to  amend  article  i,  section  7  of  the  Constitution,  relative  to  taking 
private  property  for  public  uses,  was  called. 

Not  moved. 

General  order  No.  50  (printed  No.  427),  introduced  by  Mr.  C.  A. 
Fuller,  to  amend  article  3,  section  16,  relative  to  restrictions  as  to 
private  and  local  bills,  .was  called. 

Not  moved. 


August  20.]  CONSTITUTIONAL  CONVENTION.  887 

General  order  No.  51  (printed  No.  428),  introduced  by  Mr. 
Becker,  to  amend  article  10,  section  i  of  the  Constitution,  relative 
to  the  Governor  removing  public  officers,  was  called. 

Not  moved. 

General  order  No.  52  (printed  No.  425),  introduced  by  Mr.  Doty, 
to  amend  article  i,  section  17  of  the  Constitution,  relative  to  the 
appointment  of  commissioners  of  codification,  was  called. 

Mr.  Doty  —  Mr.  President,  I  move  that  this  be  referred  to  the 
Committee  of  the  Whole. 

The  President  put  the  question  on  the  motion  of  Mr.  Doty,  and 
it  was  determined  in  the  affirmative. 

The  President  —  Mr.  Kellogg  will  please  take  the  chair. 
Mr.  Kellogg  took  the  chair. 

The  Chairman  —  The  House  is  now  in  Committee  of  the  Whole 
on  Mr.  Doty's  proposed  amendment,  general  order  No.  52  (printed 
No.  429),  relating  to  the  appointment  of  commissioners  of  codifica- 
tion. The  Clerk  will  read  the  proposed  amendment. 

The  Clerk  read  the  same,  as  follows: 

Section  17  of  article  i  of  the  Constitution  is  hereby  amended  so 
as  to  read  as  follows: 

Section  i.  All  the  provisions  of  section  17  of  article  i  of  the 
Constitution,  after  the  word  "abrogated,"  and  reading  as  follows: 
"  And  the  Legislature,  at  its  first  session  after  the  adoption  of  this 
Constitution,  shall  appoint  three  commissioners,  whose  duty  it  shall 
be  to  reduce  into  a  written  and  systematic  code,  the  whole  body  of 
the  law  of  this  State,  or  so  much  and  such  parts  thereof  as  to  the 
said  commissioners  shall  seem  practicable  and  expedient,  and  the 
said  commissioners  shall  specify  such  alterations,"  are  hereby 
abrogated. 

Mr.  Doty  —  Mr.  Chairman,  the  purpose  of  this  amendment  must 
be  perfectly  obvious.  It  is  simply  designed  to  take  out  of  the  Con- 
stitution obsolete  matter.  The  provision  sought  to  be  abrogated 
by  this  amendment  relates  to  the  codification  of  the  laws  under  the 
Constitution  of  1846,  which  seems  to  be  simply  an  injunction  on 
the  part  of  the  Legislature  to  do  certain  things  which  I  do  not  sup- 
pose it  would  be  doubted  that  the  Legislature  had  the  power  to  do. 
It  is  simply  dead  matter  at  present.  The  only  purpose  of  this 
amendment  is  to  rid  the  Constitution  of  this  apparently  unnecessary 
and  useless  provision. 

Mr.  Peck  —  Mr.  Chairman,  may  T  ask  the  gentleman  a  question? 


888  REVISED  RECORD.  [Monday, 

I  would  like  to  inquire  whether  there  is  anybody  holding  office  at 
this  time  by  virtue  of  this  power? 

Mr.  Doty  —  I  am  not  aware  that  there  is.  I  do  not  suppose  this 
will  affect  them,  inasmuch  as  the  Legislature  has  ample  power  with- 
out any  constitutional  provision,  to  create  and  maintain  an  office. 

Mr.  Peck  —  It  seems  to  me  that  the  gentleman  ought  to  inquire 
before  he  offers  this  whether  there  is  anybody  holding  office  at 
present  who  will  be  affected  by  it. 

Mr.  Doty  —  It  is  not  my  understanding  that  it  will  affect  in  any 
possible  way  any  existing  office  or  officer. 

Mr.  McDonough  —  I  desire  to  call  Mr.  Doty's  attention  to  gen- 
eral order  No.  40  (introductory  No.  381),  to  see  if  it  is  the  same  as 
his.  It  is  the  report  from  another  committee. 

Mr.  Doty —  It  is  evident,  Mr.  Chairman,  that  this  is  not  to  be-the 
subject  of  any  very  serious  discussion,  and  I,  therefore,  move  that 
the  committee  rise  and  report  this  amendment  to  the  Convention, 
and  recommend  its  passage. 

The  Chairman  put  the  question  on  this  motion,  and  it  was  deter- 
mined in  the  affirmative. 

The  Committee  of  the  Whole  thereupon  rose,  and  the  President 
took  the  chair. 

Mr.  Kellogg  —  Mr.  President,  the  Committee  of  the  Whole  have 
had  under  consideration  the  proposed  constitutional  amendment 
(printed  No.  429),  entitled,  "  To  amend  section  17  of  article  I  of  the 
Constitution,  relating  to  the  appointment  of  commissioners  of  codi- 
fication ;  "  have  gone  through  with  the  same,  have  made  no  amend- 
ments thereto,  and  have  instructed  the  Chairman  to  report  the  same 
to  the  Convention,  and  recommend  its  passage. 

The  President  put  the  question  on  agreeing  to  the  report  of  the 
Committee  of  the  Whole,  and  it  was  determined  in  the  affirmative. 

Mr.  Forbes  —  Mr.  President,  before  that  vote  is  put,  I  do  not 
understand  what  has  been  done  by  the  Committee  of  the  Whole. 
The  report  that  was  made  by  the  Chairman  of  the  Committee  of  the 
whole  was  not  heard  very  distinctly  over  here. 

The  President  —  The  report  of  the  chairman  of  the  Committee 
of  the  Whole  was  that  the  Committee  of  the  Whole  had  had  this 
amendment  under  consideration,  and  reported  recommending  its 
passage,  and  the  House  has  so  voted. 

Mr.  Forbes  —  Has  the  vote  been  declared? 

The  President  —  The  vote  has  been  declared. 


August  20.]  CONSTITUTIONAL  CONVENTION. 

Mr.  Forbes  —  I  do  not  understand  it.  Has  the  Convention 
approved  of  the  report? 

The  President  —  The  Convention  has  agreed  to  the  report. 

Mr.  Forbes  —  I  desire  to  say  something  on  the  subject,  and  I 
move  that  the  vote  be  reconsidered. 

The  President  —  Did  Mr.  Forbes  vote  with  the  majority? 
Mr.  Forbes  —  I  will  now  vote  aye,  sir. 
Mr.  Kerwin  —  He  cannot  do  that  now. 

The  President  —  I  believe,  where  the  vote  is  not  recorded  by  the 
ayes  and  noes  that  any  member  has  a  right  to  move  a  reconsidera- 
tion. 

Mr.  Bowers  —  Mr.  President,  is  not  a  motion  to  reconsider 
debatable?  May  not  Mr.  Forbes  state  his  reason  for  moving  a 
reconsideration? 

The  President  —  Certainly  he  may.  A  motion  to  reconsider  is 
debatable,  of  course. 

Mr.  Forbes  —  Mr.  President,  the  reason  I  desire  this  vote  to  be 
reconsidered  is  this.  The  amendment  has  not  been  considered  in 
the  Convention.  The  debates  on  this  subject  have  been  in  so  low 
a  tone  that  I  could  not  hear  them,  and  I  do  not  know  whether  other 
members  near  here  heard  the  explanation  that  was  made  in  favor 
of  the  passage  of  this  particular  amendment.  There  is  a  great  deal 
that  may  be  said  against  the  amendment.  I  deprecate  its  hasty 
consideration  and,  therefore,  in  order  that  the  amendment  may  be 
discussed,  I  move  that  it  be  reconsidered. 

Mr.  Bowers  —  Mr.  President,  I  oppose  the  motion  to  reconsider 
under  those  circumstances.  This  amendment  simply  provides  to 
wipe  out  what  I  understand  to  be  an  obsolete  provision  of  the  Con- 
stitution. If  there  were  any  good  reasons  for  reconsidering  this 
vote,  I  certainly  should  favor  it,  and  that  was  the  reason  I  asked 
a  moment  ago  that  Mr.  Forbes  should  explain  why  he  moved  the 
reconsideration.  It  seems  to  me  that  Mr.  Forbes  advances  no  rea- 
son why  we  should  reconsider  this  vote.  The  matter  was  carefully 
considered  in  the  committee,  and  the  Convention  undoubtedly 
knows  what  it  was  about. 

The  President  —  The  reason  stated  by  Mr.  Doty  for  the  passage 
of  this  amendment  was  that  this  was  an  obsolete  provision  of  the 
Constitution,  merely  encumbering  the  Constitution,  without  any 
meaning  or  effect. 

Mr.  Forbes  —  Now,  is  that  the  fact? 

Mr.  Peck  —  And,  also,  Mr.  President,  it  affects  nobody  in  office. 


890  REVISED  RECORD.  [Monday, 

The  President  —  And  affects  nobody  at  present  in  office. 

The  President  put  the  question  on  the  motion  to  reconsider,  and 
it  was  determined  in  the  negative. 

The  President  —  The  Clerk  will  proceed  to  call  general  orders. 

General  order  No.  53  (printed  No.  430),  introduced  by  the  Com- 
mittee on  Canals,  relative  to  canals,  was  called. 

Not  moved. 

General  order  No.  54  (printed  No.  431),  introduced  by  the  Com- 
mittee on  Canals,  to  amend  article  7,  section  6  of  the  Constitution, 
relative  to  canals,  was  called. 

Not  moved. 

General  order  No.  55  (printed  No.  432),  introduced  by  Mr.  C.  H. 
Truax,  to  amend  section  14  of  the  Constitution,  was  called. 

Mr.  C.  H.  Truax  —  Mr.  President,  general  order  No.  55  has  not 
been  printed,  and  is  not  yet  on  the  files,  but  I  have  consented  to 
allow  general  order  No.  45  to  be  substituted  in  place  of  it.  The 
Judiciary  Committee  was  in  session  when  No.  45  was  called,  and  I 
understand  it  was  the  intention  of  the  committee  to  move  No.  45 
at  this  session,  but  owing  to  the  fact  that  they  were  not  here  at  the 
time,  they  were  not  able  to  do  so.  I,  therefore,  consent  that  No.  45 
be  substituted  in  place  of  No.  55,  and  move  that  we  go  into  Com- 
mittee of  the  Whole  upon  it. 

The  President  —  Unless  objection  is  made,  No.  45  will  be  called 
in  place  of  No.  55,  and  the  Clerk  will  call  it. 

The  Clerk  called  general  order  No.  45  (printed  No.  422),  intro- 
duced by  the  Judiciary  Committee,  to  amend  article  6,  relative  to 
the  judiciary;  and  minority  report  on  the  same,  general  order 
Document  No.  54. 

The  President  put  the  question  on  the  motion  to  go  into  Commit- 
tee of  the  Whole  on  general  order  No.  45,  and  it  was  determined  in 
the  affirmative. 

The  Convention  went  into  Committee  of  the  Whole,  and  Mr. 
Acker  took  the  chair. 

The  Chairman  —  The  Clerk  will  read  the  first  section. 

The  Clerk  then  read  as  follows:  "  General  order  No.  45  (printed 
No.  422),  introduced  by  the  Committee  on  Judiciary,  proposed  con- 
stitutional amendment  to  amend  article  6  of  the  Constitution, 
relating  to  the  judiciary. 


August  20.]  CONSTITUTIONAL  CONVENTION.  891 

"  The  delegates  of  the  people  of  the  State  of  New  York,  in  Con- 
vention assembled,  do  propose  as  follows : 

"  Section  i.  The  Supreme  Court  is  continued  with  general  juris- 
diction in  law  and  equity,  subject  to  such  appellate  jurisdiction  of 
the  Court  of  Appeals  as  now  is  or  may  be  prescribed  by  law,  not 
inconsistent  with  this  article.  The  existing  judicial  districts  of  the 
State  are  continued  until  changed,  as  hereinafter  provided.  The 
Supreme  Court  shall  consist  of  the  Supreme  Court  justices  now  in 
office,  and  of  the  justices  transferred  thereto  by  the  fifth  section  of 
this  article,  all  of  whom  shall  continue  to  be  justices  of  the  Supreme 
Court  during  their  respective  terms,  and  of  twelve  additional  jus- 
tices who  shall  reside  in  and  be  chosen  by  the  electors  of  the  sev- 
eral existing  judicial  districts,  three  in  the  first  district,  three  in  the 
second,  and  one  in  each  of  the  other  districts,  and  of  their  succes- 
sors. The  successors  of  said  justices  shall  be  chosen  by  the  electors 
of  their  respective  judicial  districts.  The  Legislature  may  alter  the 
judicial  districts  once  after  every  enumeration  under  the  Constitu- 
tion of  the  inhabitants  of  the  State,  and  thereupon  reapportion  the 
justices  to  be  thereafter  elected  in  the  districts  so  allotted." 

The  Chairman  —  Are  there  any  amendments  to  the  first  section 
of  this  proposed  amendment? 

Mr.  Root  —  Air.  Chairman,  if  the  members  of  the  Convention  in 
committee  will  bear  with  me  for  a  few  minutes,  I  would  like  to 
explain  the  relation  of  this  first  section  to  the  other  sections  of  the 
proposed  article,  and,  in  so  doing,  to  explain  the  general  scheme  of 
reform  in  the  judicial  system  of  the  State  which  is  proposed  by  the 
committee.  The  two  main  evils  which  manifestly  require  treatment 
by  this  Convention,  so  far  as  the  judicial  system  is  concerned,  are 
the  great  delay  in  bringing  causes  to  trial,  in  the  first  instance,  and 
the  great  delay  in  securing  the  final  disposition  of  causes  because  of 
the  overcrowding  of  the  calendar  of  the  Court  of  Appeals.  The 
proposed  article  is  designed  in  the  best  way  which  the  committee 
could  devise  to  meet  these  two  evils.  So  far  as  the  first  is  con- 
cerned, that  is  to  say,  the  overcrowding  of  calendars  of  courts  of  the 
first  instance,  the  cure  is  simple.  It  is,  to  bring  about  as  great  an 
economy  of  judicial  force  in  the  trial  courts  as  possible,  and  to  make 
a  sufficient  number  of  additions  to  those  courts  to  enable  a  suitor 
to  have  his  case  tried  at  the  earliest  possible  day.  The  overcrowd- 
ing of  calendars  of  trial  courts  exists  chiefly  in  the  great  cities. 
It  is  worst  in  the  city  of  New  York.  Next  to  that  comes  the  city 
of  Brooklyn,  and  so  on  through  the  other  cities  of  the  State,  almost 
in  proportion  to  their  size.  The  committee  has  proposed  in  this 


892  REVISED  RECORD. 

article  to  dispose  of  this  evil,  in  the  first  place,  by  consolidating  with 
the  Supreme  Court  the  Superior  City  Courts  which  exist  in  the  cities 
of  New  York,  Brooklyn  and  Buffalo.  This  will  lead  to  great  econ- 
omy of  judicial  force,  because,  at  present,  in  the  city  of  New  York, 
there  is  the  Supreme  Court,  with  its  jury  terms,  which  we  call  cir- 
cuits, its  Special  Terms  for  the  trial  of  equity  causes,  its  chambers 
for  the  hearing  of  motions,  and  its  General  Term  for  the  hearing  of 
appeals.  There  is  also  the  Court  of  Common  Pleas,  with  a  like 
array  of  jury  terms  and  special  terms  and  chambers  and  general 
terms.  Then  there  is  the  Superior  Court,  with  a  similar  array  of 
different  parts,  and,  in  the  midst  of  these,  with  three  general  terms 
and  a  great  number  of  special  terms,  and  three  judges  sitting  in 
chambers,  and  a  great  number  of  jury  terms,  judges  assigned  for  a 
particular  term  for  a  month,  run  out  of  business  and  have  nothing 
to  do  for  the  rest  of  the  month.  A  great  deal  of  time  is  occupied  in 
passing  from  one  assignment  to  the  other,  and  in  this  paraphernalia 
and  machinery  of  judicial  procedure,  multiplied  over  and  over  again 
in  the  different  courts.  A  lesser  evil  is  the  great  expenditure  of 
money  involved  in  keeping  up  separate  clerks'  offices,  separate 
attendants,  and  the  separate  machinery  of  the  different  courts.  We 
think  there  will  be  a  very  decided  economy  of  judicial  force  arising 
from  the  consolidation  of  these  courts.  We  next  propose  to  secure 
to  the  suitor  the  early  trial  of  his  cause  by  a  moderate  increase  of 
the  judicial  force.  That  increase,  in  the  first  place,  adopts,  or  the 
provision  for  that  increase,  in  the  first  place,  adopts  an  amendment 
which  has  already  been  proposed  to  the  people  by  two  existing  Leg- 
islatures acting  in  constitutional  form.  That  amendment  is  before 
the  people,  and  is  to  be  submitted  to  them  at  the  election  this  com- 
ing fall,  at  the  same  time  that  our  revised  Constitution  will  be  sub- 
mitted. It  provides  for  two  additional  justices  of  the  Supreme 
Court  in  the  first  department,  and  for  two  additional  justices  of  the 
Supreme  Court  in  the  second  department.  They  are  grievously 
needed  in  both  of  these  departments;  and,  as  two  successive  Legis- 
latures have  provided  for  them,  we  adopt  their  recommendations  to 
the  people,  and  submit  in  our  proposed  article  the  same  proposition 
which  will  come  before  them  under  the  separate  submission  by  the 
Legislature.  We  also  propose  to  add  one  additional  justice  of  the 
Supreme  Court  in  each  of  the  existing  judicial  districts,  and  that, 
we  think,  will  fully  supply  the  need  which  is  felt  in  the  courts  of 
first  instance,  and  will,  moreover,  make  up  for  a  single  loss  of  work- 
ing force  in  the  trial  courts  arising  from  the  Constitution  of  the 
immediate  appellate  tribunal  of  the  Supreme  Court,  which  we  pro- 
pose shall  take  the  place  of  the  General  Term,  and  which  I  will 


August  20.]  CONSTITUTIONAL  CONVENTION.  893 

explain  presently.  So  much  for  the  courts  of  first  instance.  The 
other  evil  is  the  overcrowding  of  the  calendar  of  the  Court  of 
Appeals,  and  we  have  treated  that  with  this  view  of  the  function  of 
a  court  of  last  resort  and  of  the  intermediate  courts  of  appeal  which 
exist  in  this  State.  It  is  perfectly  apparent  that  when  the  State  has 
furnished  to  its  citizens  one  trial  of  their  rights  and  one  impartial 
review  of  the  rulings  and  the  results  of  that  trial  by  a  competent  tri- 
bunal, it  has  fulfilled  its  duty.  That  is  all  that  is  done  in  the  other 
States  of  the  Union.  It  is  all  that  is  done  under  the  system  of  the 
federal  judiciary.  One  trial  by  a  competent  court  and  one  review 
by  a  competent  and  impartial  tribunal  is  all  that  either  public  duty 
or  private  interest  in  litigation  requires,  so  far  as  the  litigant  him- 
self is  concerned.  There  is  no  reason  for  having  a  court  of  appeals 
superior  to  the  courts  which  in  the  first  instance  review  judgments 
of  the  trial  courts  in  this  State,  except  for  this  consideration  which 
I  will  now  state.  It  is,  that  the  amount  of  judicial  business  in  this 
State  is  so  great  that  it  is  impossible  for  any  one  court  to  review 
all  the  decisions  of  courts  of  first  instance.  It  would  be  impossible 
for  any  two  courts  to  review  them  all,  or  for  any  three  courts,  prob- 
ably. So  that,  in  order  that  litigants  may  have  the  hasty  rulings  of 
the  trial  courts  reviewed,  it  is  necessary  that  we  should  have  three 
or  four  courts  of  appeals  to  perform  that  function.  But,  three  or 
four  courts  never  can  settle  the  law,  and  it  is  of  the  highest  import- 
ance to  the  people  of  the  State,  and  all  the  people  of  the  State,  not 
merely  that  the  litigant  in  a  particular  lawsuit  shall  have  his  right, 
but  that  the  law  shall  be  settled;  that  it  shall  be  declared  so  clearly 
that  all  the  people  may  know  what  is  the  law  by  which  they  are  to 
regulate  their  contracts  and  their  conduct  and  keep  out  of  litigation, 
if  may  be,  so  that  it  may  be  a  symmetrical  and  harmonious  system 
for  the  government  of  the  people  of  the  State  as  well  as  for  accord- 
ing specific  rights  to  the  parties  in  particular  litigations.  Now, 
three  or  four  courts  can  never  accomplish  that.  They  are  certain 
to  vary  and  differ  and  conflict  in  their  decisions.  It  is  necessary, 
in  order  that  the  law  shall  be  settled,  shall  be  clear,  shall  be  harmoni- 
ous, shall  be  known,  and  shall  be  a  guide  for  the  conduct  of  all  the 
people  of  the  State,  that  some  one  supreme  authority  shall  overrule 
and  supervise  the  decisions  of  these  various  courts  of  original  appeal, 
and  once  for  all  declare  what  is  the  law.  That  is  the  sole  reason 
for  the  existence  of  the  Court  of  Appeals.  But  for  that  we  might 
abolish  the  Court  of  Appeals  and  constitute  four  supreme  appellate 
tribunals  in  different  parts  of  the  State,  and  allow  them  to  render  to 
litigants  their  rights  in  their  particular  litigations.  When  the 
judiciary  article  of  1867  was  adopted  it  was  supposed  that  the  Court 


894  REVISED  RECORD.  [Monday, 

of  Appeals,  as  then  constituted,  would  be  able  to  review  all  of  the 
decisions  of  the  General  Terms  of  the  Supreme  Court  then  consti- 
tuted, and  that  those  General  Terms  would  so  sift  out  the  appeals 
which  came  to  them  that  only  so  many  would  go  to  the  Court  of 
Appeals  as  it  should  be  able  to  take  care  of.  That  was  so  for  a 
time,  but  of  late  years  it  is  no  longer  so.  Various  circumstances 
connected  with  the  organization  and  action  of  the  General  Terms 
have  brought  about  a  state  of  affairs  in  which  so  large  a  body  of 
appeals  passes  through  those  courts  on  to  the  Court  of  Appeals  that 
that  court  no  longer  can  keep  up  with  its  work  and  perform  the 
function  of  settling  and  declaring  the  law  of  the  State;  and  with  this 
view  we  addressed  ourselves  to  ascertain  whether  it  was  not  possible 
to  so  constitute  the  intermediate  appellate  tribunal  which  we  have 
heretofore  called  the  General  Term,  and  so  regulate  the  appeals 
from  its  judgments  to  the  Court  of  Appeals  that  it  would  perform 
the  function  which  it  was  originally  designed  to  perform.  We 
found  among  the  reasons  why  the  General  Terms  were  not  able  to 
stop  the  great  body  of  appeals  to  the  Court  of  Appeals,  these:  In  the 
first  place,  the  General  Term  is  so  small,  consisting  of  only  three 
members,  that  there  was  not  that  consultation,  that  deliberation, 
that  correction  of  one  mind  by  another  which  is  necessary  for  the 
satisfactory  conclusion  of  an  appellate  tribunal.  In  the  next  place, 
as  the  justices  of  the  General  Term  are  engaged  in  the  ordinary 
judicial  work,  trying  and  deciding  cases,  and,  in  many  instances, 
doing  their  full  share  of  trial  work,  in  numerous  cases  litigants  com- 
ing before  that  court  find  that  one  of  the  judges  is  obliged  to  retire 
from  the  bench.  And  a  double  evil  has  resulted.  First,  that  there 
were  but  two  judges  to  pass  upon  the  appeal  —  a  number  mani- 
festly insufficient  to  secure  full  consultation  and  deliberation  and 
correction  of  one  judgment  by  another.  And  another  evil  was  that 
litigants  were  obliged  to  see  the  very  judge  from  whom  they  were 
appealing  going  into  the  consultation  room  with  the  other  two 
judges  who  were  his  associates,  and  upon  whose  decisions  he  was 
about,  in  the  due  course  of  the  call  of  the  calendar,  to  sit  in  review 
for  consultation  on  all  the  general  business  of  the  court. 

And  both  of  these  have  tended  to  decrease  respect  for  the  judg- 
ments of  the  General  Terms.  Moreover,  the  fact  that  these  judges 
in  the  General  Terms  were  called  upon  to  leave  that  work  to  go  to 
their  circuits  and  to  their  Special  Terms  has  led  to  the  shortening 
of  their  hearing,  and  to  cutting  down  counsel,  so  that  they  have  been 
in  the  habit,  in  many  places,  of  uniformly  leaving  the  court  feeling 
dissatisfied  and  that  they  had  not  had  an  opportunity  for  the 
full  presentation  of  their  cases.  And  the  judges,  called  away  by  these 


August  20.]  CONSTITUTIONAL  CONVENTION.  895 

other  duties,  have  been  in  the  habit  frequently  of  separating  with 
their  work  unfinished;  and  we  all  know  that  it  has  been  largely  a 
practice  for  the  judges  of  the  General  Terms,  after  these  brief  and 
hurried  hearings,  after  counsel  have  gone  out  of  court  dissatisfied 
because  they  have  not  been  fully  heard,  to  separate  and,  without 
much  of  any  consultation,  have  one  judge  write  an  opinion  and  send 
it  around  to  be  concurred  in,  or  not,  as  the  case  might  be;  and  all 
the  tendency  of  all  the  vis  inert iac  which  exists  among  judges,  as  it 
does  among  others,  has  led  toward  concurrence  rather  than  courting 
a  troublesome  struggle  by  disagreement  with  an  opinion  already 
written. 

Then,  again,  the  Legislature  has  been  constantly  enlarging  the 
scope  of  appeal  from  the  General  Term  to  the  Court  of  Appeals.  It 
has  opened  doorway  after  doorway,  through  which  constantly 
additional  kinds  of  questions  could  be  taken  up  to  the  Court  of 
Appeals,  so  that  the  finality  of  the  judgment  of  the  General  Term 
has  been  constantly  decreased,  and.  therefore,  respect  for  their  decis- 
ions has  been  decreased,  and  their  own  sense  of  responsibility  has 
been  decreased.  Now,  what  we  propose  to  do  is  this;  we  propose 
to  divide  the  State  into  four  departments,  and  in  each  department 
have  a  new  appellate  tribunal,  which  will  take  the  place  of  the  five 
General  Terms  of  the  Supreme  Court,  and  the  four  General  Terms 
of  the  Superior  City  Courts,  nine  in  all,  to  which  all  appeals,  from 
whatever  tribunal,  shall  go  in  the  first  instance;  and  we  propose  to 
make  that  a  more  effective  and  satisfactory  tribunal  than  the  exist- 
ing General  Terms  in  these  ways:  In  the  first  place,  by  giving  a 
greater  finality  to  its  judgments  than  the  General  Terms  now  have; 
finality  in  a  much  wider  range  of  questions,  by  imposing  limitations 
upon  the  jurisdiction  of  the  Court  of  Appeals,  and  on  the  right  of 
appeal  to  that  court.  In  the  next  place,  by  giving  stability,  perma- 
nence and  independence  to  that  court,  through  making  its  members 
hold  for  a  fixed  term;  and  for  that  purpose  we  provide,  that  they 
shall  be  selected  from  all  the  justices  elected  to  the  Supreme  Court, 
for  terms  of  five  years;  the  presiding  judge  for  a  term  which  shall 
be  coextensive  with  the  remainder  of  his  term  of  office  in  the 
Supreme  Court.  We  give  them  also  the  right,  the  power,  to  govern 
their  own  sessions  and  to  appoint  their  own  clerk,  and  fix  the  place 
where  his  office  shall  be  held.  So  that  instead  of  being  a  court  with- 
out a  clerk,  without  a  home,  without  power  of  self-control,  shifting, 
variable  always,  coming  in  and  out  from  the  trial  courts,  reviewing 
each  other's  decisions,  without  sufficient  time  for  the  performance  of 
their  duties,  it  will  be  a  real  court,  with  power,  with  permanence, 
with  stability,  and  worthy  of  the  name  of  an  appellate  tribunal.  We 


896  REVISED  RECORD.  [Monday, 

propose,  further,  to  give  it  the  opportunity  for  full  discussion,  by 
making  it  a  court  of  five  members;  and  five  members,  gentlemen, 
will  have  to  consult.  One  of  the  presiding  justices  of  the  General 
Term  said  to  me  some  time  ago  upon  the  subject:  "  We  cannot  do 
any  more  work  with  five  judges  than  we  can  with  three."  "  Yes," 
I  said,  "  but  if  you  have  five  judges,  will  you  not  consult?  "  "  Yes," 
he  said,  "we  will."  And,  therefore,  I  say,  though  five  judges  will 
not  do  any  more  work  than  three,  they  will  do  better  work  and  better 
respected  work.  In  the  next  place,  we  propose  to  give  them  the 
opportunity  for  deliberation,  consultation  and  full  hearing,  by  reliev- 
ing them  of  the  obligation  of  doing  all  other  judicial  work.  We 
leave  them  certain  opportunities  to  hear  motions  by  consent  and 
perform  the  duties  of  a  justice  out  of  court  for  the  convenience  of 
the  people  in  their  own  localities,  but  we  make  it  so  that  they  cannot 
be  called  upon  to  sit  in  Circuit  or  in  Special  Term,  or  to  try  or 
determine  cases.  This,  then,  will  be  a  real  court,  constituted, 
selected  from  good  material,  selected  from  a  great  and  intelligent 
population,  constituted  by  the  conjoint  action  of  the  elective  prin- 
ciple, through  the  power  exercised  by  the  people,  and  the  appointive 
principle,  through  the  power  exercised  by  the  Governor,  of  selection 
from  the  justices  of  the  Supreme  Court,  as  respectable,  as  able,  as 
efficient,  as  any  court  of  last  resort  in  any  State  of  the  Union.  We 
believe  that  it  will  be  more  satisfactory  and  effective,  that  its  judg- 
ments will  be  more  respected,  that  they  will  be  less  frequently 
reversed,  and,  therefore,  less  frequently  appealed  from  than  the 
existing  General  Terms.  The  correlative  to  this  plan  as  to  the 
formation  of  this  new  court  —  which,  by  the  way,  we  call  the  Appel- 
late Division  of  the  Supreme  Court,  abandoning  the  misnomer  of 
General  Term,  which  now  means  nothing,  and  which  nobody  but 
a  lawyer  understands  —  the  correlative  to  this  plan  is  the  limitation 
upon  the  appeals  to  the  Court  of  Appeals.  In  framing  this  we  have 
endeavored  to  follow  a  clear  line  of  logical  distinction  between  the 
proper  functions  of  this  Court  of  Appeals  and  the  courts  of  first 
review,  a  line  of  distinction  marked  out  by  the  very  definition  of  the 
proper  function  of  a  court  of  second  appeal.  That  is  marked  out 
by  the  function  of  settling  and  declaring  the  law ;  and  we  propose  to 
limit  the  Court  of  Appeals  in  two  ways;  first,  by  limiting  them  to  the 
review  of  questions  of  law,  and,  second,  by  limiting  appeals  to  them 
to  final  judgments  or  orders,  and  to  appeals  from  orders  granting 
new  trials,  where  there  is  a  stipulation  for  judgment  absolute,  so 
that  in  case  of  affirmance  their  decision  would  be  final.  There  is  a 
general  understanding  now  that  the  proper  function  of  a  Court  of 
Appeals  is  to  pass  only  on  questions  of  law,  and  that  it  is,  under  the 


August  20.]'          CONSTITUTIONAL  CONVENTION.  897 

law,  to  pass  only  upon  them;  but  there  is  a  great  class  of  cases 
which  finds  its  way  into  the  Court  of  Appeals  where  virtually  there 
is  a  review  of  the  question  of  fact  for  a  second  time,  and  we  close 
the  door  to  that  class,  by  declaring  the  principle  that  their  jurisdic- 
tion shall  be  limited  to  the  review  of  questions  of  law,  and  by  provid- 
ing that  no  unanimous  decision  of  an  appellate  division  that  there  is 
evidence  to  sustain  or  support  a  verdict  not  directed  by  the  court', 
or  a  finding  of  fact,  shall  be  reviewed  by  the  Court  of  Appeals.  So 
that  when  a  man  has  tried  his  case  and  he  has  got  a  jury  or  a  court 
to  decide  that  a  fact  is  proved,  and  five  judges  of  the  Appellate 
Division  of  the  Supreme  Court  have  unanimously  held  that  the  fact 
was  proved,  there  is  to  be  an  end  of  controversy  upon  that  fact. 
There  certainly  is  no  reason,  no  sense,  in  allowing  parties  to  go  on 
and  contest,  over  and  over  again,  the  existence  of  a  fact  so  conclu- 
sively passed  upon  as  that.  We  do  not  touch  the  question  of  non- 
suits. We  do  not  touch  the  propriety  of  directed  verdicts.  We  do 
not  touch  the  question  of  reversals.  We  do  not  touch  any  ques- 
tion where  there  is  any  dissent  in  the  Appellate  Division,  but  where 
a  fact  has  been  declared  by  a  jury  to  be  proved,  and  five  justices  have 
unanimously  declared  that  it  was  proved,  we  say  that  the  State  has 
done  its  whole  duty  to  the  litigants  in  that  case,  and  the  controversy 
upon  that  fact  should  stop,  and  that  the  question  as  to  the  fact 
should  not  be  allowed  to  go  on  to  the  court  of  last  resort,  which 
we  have  constituted  solely  to  decide  the  law  for  the  whole  State, 
and  take  its  time  away  from  the  performance  of  its  proper  functions. 
And  so  as  to  questions  of  practice.  Why  should  this  court, 
which  is  to  declare  the  law  for  all  the  people,  be  bothered  about 
petty  questions  of  practice,  which  can  as  well  be  settled  by  the  appel- 
late tribunal  which  we  now  constitute,  as  by  the  Court  of  Appeals? 
We  believe  that  these  two  limitations,  one  limiting  them  to  the 
decision  of  questions  of  law,  made  effective  by  the  supplementary 
provision  that  I  have  mentioned;  the  other  limiting  the  review  of 
final  judgments,  together  with  the  increased  respect  and  efficiency 
of  the  appellate  tribunal,  will  so  greatly  decrease  the  number  of 
appeals  to  the  Court  of  Appeals  that  it  will  for  many  years,  will 
until  the  time  comes  for  another  Constitution  to  be  made,  be  able 
to  deal  with  all  the  questions  presented  to  it,  and  to  keep  up  with  its 
calendar.  We  have,  also,  for  greater  certainty,  and  out  of  abundant 
caution,  proposed  the  addition  of  two  members  to  the  bench  of  the 
Court  of  Appeals;  and  we  think,  or  many  of  the  committee  think, 
that  that  will  to  some  degree  increase  the  working  power  of  the 
court. 

57 


REVISED  RECORD.  '   [Monday, 

I  think,  Mr.  Chairman,  that  that  covers  the  main  and  substantial 
subjects  which  are  treated  of  in  this  report,  and  which  enter  into 
and  are  essential  to  the  general  scheme,  the  main  and  substantial 
features,  destroying  any  one  of  which  would  bring  down  the  whole 
edifice.  In  reaching  the  conclusion  that  the  course  which  I  have 
outlined  was  the  proper  course  to  remedy  the  evil  which  I  have 
mentioned,  the  committee  has  had  in  contemplation  several  other 
alternatives,  some  of  which  have  been  proposed  in  amendments  laid 
before  it.  And  those  were,  first,  that  we  might  limit  the  jurisdiction 
of  the  Court  of  Appeals  by  fixing  a  moneyed  amount,  and  prevent- 
ing appeals  to  that  court  in  any  case  which  involves  less  than  the 
amount  fixed,  following  in  that  respect  the  federal  system  of  judica- 
ture, which  allows  no  appeal  to  the  Supreme  Court  of  the  United 
States  in  cases  involving  less  than  five  thousand  dollars.  But  we 
do  not  believe,  gentleman,  that  that  is  a  wise  provision  for  the  courts 
of  this  State.  We  think  it  decidedly  objectionable.  We  think  that 
as  important  questions  of  law  arise  in  small  cases  as  in  great  ones; 
and  we  believe,  moreover,  that  the  Court  of  Appeals  of  this  State, 
the  court  of  last  resort,  which  is  to  declare  the  law  for  the  guidance 
of  all  the  people,  ought  to  be  all  the  people's  court.  We  believe 
that  it  should  be  the  court  of  the  poor  man,  so  that  he  may  feel  that 
he  may  go  there  if  he  wants  to,  with  his  question  of  law,  as  well  as 
the  court  of  his  wealthier  fellow-citizen.  (Applause.)  We  believe 
that  it  is  only  when  based  upon  such  a  foundation,  that  any  public 
institution  can  be  considered  permanent  in  a  free  constitutional  gov- 
ernment. Therefore,  instead  of  putting  in  a  moneyed  limit  upon 
appeals  to  the  Court  of  Appeals,  we  have  provided  that  the  limit 
now  existing  should  be  taken  off,  and  that  no  such  limit  shall  ever 
be  imposed.  (Applause.)  Another  alternative  was,  that  we  might 
increase  the  Court  of  Appeals  so  largely  that  it  could  sit  in  two 
divisions,  or  that  it  could  become  a  rotary  court,  a  large  part  of  its 
members  being  always  absent,  and  filling  the  places  of  others  in  suc- 
cession, so  that  the  members  of  the  court  would  always  be  changing 
from  week  to  week,  from  day  to  day.  But  the  adoption  of  either  of 
these  expedients  would  have  frustrated  the  sole  object  for  which  the 
court  exists.  It  would  have  destroyed  its  unity,  it  would  have 
destroyed  its  consistency,  it  would  have  prevented  it  from  being  the 
expounder  of  a  consistent  and  harmonious  system  of  law,  it  would 
have  prevented  it  from  settling  the  law,  it  would  have  brought  down 
its  decisions,  its  opinions,  which  are  now  second  to  none  in  the 
Union,  which  now  stand  side  by  side  with  the  Supreme  Court  of  the 
United  States,  and  are  the  just  source  of  pride  to  every  member  of 
our  commonwealth,  would  have  brought  their  authority  down  to  a 


August  20.]  CONSTITUTIONAL  CONVENTION.  899 

point  where  they  would  have  been  less  respected  and  less  valuable 
than  the  decisions  of  the  tribunals  which  they  are  to  govern,  and 
would  have  been  merely  the  varying  and  fluctuating  utterances  of 
a  divided  or  of  a  continually  changing  tribunal.  We  might  as  well 
abolish  the  court  and  rely  solely  upon  these  four  separate  Appellate 
Divisions  as  to  divide  the  court  and  have  it  open  to  the  same  objec- 
tions which  have  led  us  to  put  a  court  above  them.  Another  alter- 
native was  that  we  might  do  as  the  judiciary  commission  of  1890 
proposed,  undertake  to  enumerate  classes  of  cases  upon  which 
parties  might  go  to  the  Court  of  Appeals,  leaving  other  classes  of 
cases  upon  which  they  should  be  stopped  at  the  tribunal  of  first 
resort.  But  that  is  uncertain,  indefinite,  difficult  of  application.  It 
is  not  within  human  power  to  avoid  mistakes  in  enumeration  and 
definition  of  such  classes.  It  may  be  well  to  attempt  it  when,  as 
in  the  federal  Circuit  Court  of  Appeals  act,  there  is  a  statute  which 
may  be  revised  every  year  by  Congress;  but  to  undertake  to  place 
in  a  Constitution  provisions  of  this  kind,  which  are  certain  to  require 
amendment,  is  an  undertaking,  an  experiment  which  ought  to  be 
avoided  if  possible.  There  are  these  substantial  objections  to  that 
also  that  it  involves  an  element  of  unfairness  to  the  citizens  who  are 
most  interested  in  the  class  of  cases  that  are  not  allowed  to  go  to 
the  Court  of  Appeals;  and  this  other  objection,  that  the  same  ques- 
tions of  law  arise  in  different  kinds  of  cases ;  the  same  kinds  of  ques- 
tions as  to  evidence  of  various  descriptions  will  arise  in  civil  cases 
and  in  criminal  cases,  in  common  law  cases  and  in  equity  cases,  in 
cases  sounding  in  tort  and  cases  sounding  in  contract;  and  if  you 
undertake  to  limit  the  jurisdiction  of  the  Court  of  Appeals  by 
enumerating  classes  that  can  go  and  classes  that  cannot  go  there, 
you  will  have  one  court  deciding  as  a  last  resort  upon  a  given  ques- 
tion arising  in  one  kind  of  a  case,  and  another  deciding  as  a  court 
of  last  resort,  upon  the  same  question  arising  in  another  kind  of  a 
case.  Then  there  is  the  provision  for  a  second  division  of  the  Court 
of  Appeals,  which  now  exists.  As  a  make-shift,  while  it  has  some 
advantages,  we  think  they  are  more  than  counter-balanced.  In  the 
first  place,  it  has  no  element  of  prevention.  It  is  but  a  cure  after 
the  disease  has  gained  headway;  and  it  necessarily  implies  what 
involves  great  injustice  and  inconvenience  and  loss  —  the  accumula- 
tion of  a  great  number  of  cases  on  the  calendar  of  the  Court  of 
Appeals,  for  the  hearing  of  which  litigants  are  waiting  year  after 
year,  before  the  remedy  is  applied,  and  a  second  division  consti- 
tuted. It  has  this  other  objectionable  feature,  that  when  the  remedy 
is  applied,  it  deranges  the  work  of  the  Supreme  Court,  from  which 
the  judges  of  the  second  division  are  taken,  and  withdraws  them 


900  REVISED  RECORD.  [Monday, 

from  their  proper  field  of  labor,  and  leaves  the  people  who  want 
their  decisions  in  their  own  courts,  without  judges  to  do  their  work. 

So,  we  come  down  to  the  plan  we  have  adopted,  which  draws  the 
line  of  limitation  clearly  on  the  logical  division  around  the  decision 
of  those  questions  for  which,  and  for  which  alone,  the  Court  of 
Appeals  was  created,  and  leaves  those  questions  to  that  court,  and 
leaves  all  other  questions  to  the  new,  strong,  competent  court  which 
we  propose  to  create  for  that  purpose,  and  which  we  believe  will  give 
to  every  litigant  all  the  protection  to  which  he  is  entitled,  for  which 
he  may  ask. 

Mr.  Chairman,  there  is  another  series  of  revisions  in  this  report 
relating  to  Circuit  Courts,  Courts  of  Oyer  and  Terminer,  and  Courts 
of  Sessions.  We  have  provided  for  the  abolition  of  the  Courts  of 
Oyer  and  Terminer,  and  of  the  Circuit  Courts.  Those  courts  are 
but  a  shadow;  they  are  but  a  form,  but  a  name.  Laymen  do  not 
know  what  they  are;  lawyers  do  not  know  what  they  are.  How 
absurd  it  is  for  a  justice  of  the  Supreme  Court  to  go  in  and  take  a 
seat  on  the  bench  and  be  sitting  in  the  Supreme  Court  at  ten  o'clock, 
trying  an  equity  case;  a  jury  case  is  to  be  tried;  he  has  to  empanel 
a  jury,  and  lo,  he  is  converted  in  the  twinkling  of  an  eye  into  a  Court 
of  Oyer  and  Terminer.  It  is  the  same  man,  it  is  the  same  bench; 
there  are  the  same  officers,  but  he  has  suddenly  become  a  Court  of 
Oyer  and  Terminer  and  goes  on  and  tries  his  case;  or  it  is  a  civil 
jury  case,  and  he  then  has  to  go  through  the  performance  of  the 
character  artist  again  and  becomes  a  Circuit  Court.  Of  course, 
since  there  are  no  side  judges,  there  is  no  occasion  to  preserve  this 
shadow  of  a  court;  the  form,  the  name,  but  mystify  laymen,  embar- 
rass lawyers,  and  confuse  and  interfere  with  legislators  in  the  mak- 
ing of  statutes.  Some  time  or  other  the  name  and  the  form  have 
got  to  be  dispensed  with,  and  we  thought  this  was  as  good  a  time 
as  any,  and  so  we  have  abolished  the  Circuit  Court  and  Court  of 
Oyer  and  Terminer,  and  conferred  all  their  jurisdiction  upon  the 
Supreme  Court,  by  the  justices  of  which  that  jurisdiction  now  is 
exclusively  exercised.  We  have  done  the  same  thing  as  to  Courts 
of  Sessions.  The  committee  was  prepared  to  report  favorably  the 
amendment  abolishing  side  judges  in  the  Courts  of  Sessions.  They 
seem  to  be  wholly  unnecessary  and  useless,  but  when  side  judges  are 
abolished,  there  remains  nothing  but  the  county  judge  sitting  in 
the  Court  of  Sessions,  performing  the  same  functions  there  that  the 
Supreme  Court  justice  performs  in  the  Court  of  Oyer  and  Terminer; 
and  so  we  do  away  with  that  form  and  that  name,  and  abolish  the 
Court  of  Sessions,  and  confer  its  jurisdiction  upon  the  County 
Court.  We  think,  gentlemen,  that  this  is  not  merely  simplifying 


August  20.]  CONSTITUTIONAL  CONVENTION.  901 

the  statutes  and  doing  away  with  something  that  is  useless.  We 
think  that  it  is  a  distinct  advantage  in  a  popular  government  that 
the  people  shall  understand  the  administration  of  the  law,  and  that 
the  fewer  terms  and  forms  you  have  in  it,  which  are  like  the  Egyp- 
tian mysteries,  and  that  people  do  not  know  anything  about,  the 
better  it  is  for  the  administration  of  the  law;  and  these  changes 
make  in  that  direction. 

We  have  done  one  other  thing,  to  which  I  beg  to  call  your  atten- 
tion; that  is  this:  There  has  been  a  constant  process  in  this  State 
of  enlargement  of  the  jurisdiction  of  local  and  inferior  tribunals. 
That  is  the  way  in  which  we  found  ourselves  confronting  the  situ- 
ation with  four  Superior  City  Courts,  which  had  been  gradually 
built  up,  one  of  them  during  two  hundred  years,  the  others  during 
much  shorter  periods,  by  the  constant  addition  of  jurisdiction,  Until 
each  one  had  equal  jurisdiction  with  the  Supreme  Court  within 
the  locality  in  which  it  was  situated.  That  is  not  the  way  to  enlarge 
the  Supreme  Court.  We  are  proposing  to  take  the  judges  of  these 
courts  into  the  Supreme  Court,  but  it  is  not  the  scientific  or  the 
practical,  or  the  proper  way  to  enlarge  the  Supreme  Court  of  the 
State.  The  true  way  is,  if  the  Supreme  Court  is  not  large  enough 
to  perform  its  functions,  and  the  people  are  satisfied  of  that,  to  make 
it  large  enough ;  not  to  build  up  another  court  which  will  be  a  rival 
to  it,  creating  different  jurisdictions,  giving  people  an  opportunity 
to  select  their  jurisdiction,  which,  as  somebody  has  said,  if  it  is  a 
good  thing  for  the  plaintiff,  is  always  a  wrong  to  the  defendant. 
So,  while  we  destroy  by  consodidating  all  these  tribunals  which 
have  grown  to  be  equal  in  jurisdiction  to  the  Supreme  Court,  and 
leave  only  one  Supreme  Court,  we  prohibit  the  Legislature  from 
ever  enlarging  the  jurisdiction  of  local  and  inferior  courts,  so  that 
they  shall  exceed  as  to  the  courts  now  existing,  the  jurisdiction  they 
now  have,  and  as  to  any  court  they  may  hereafter  create,  the  juris- 
diction of  the  County  Courts.  We  thus  keep  down  to  the  level  of 
the  County  Courts  local  tribunals  and  useful  tribunals,  adapted  to 
the  performance  of  specific  functions,  all  courts  except  the  one 
Supreme  Court;  and  we  do  that  not  only  for  symmetry,  not  only 
to  avoid  the  inconveniences  to  which  I  have  referred  of  the  building 
up  of  these  rivals  to  the  Supreme  Court,  but  we  do  it  because  it 
gives  effect  to  a  principle,  and  this  is  the  principle.  The  proper  trial 
of  small  causes  is  just  as  important  as  the  proper  trial  of  large 
causes.  Small  causes  are  just  as  important  to  those  who  have  them 
as  large  causes  are  to  wealthier  men.  The  great  body  of  the  people 
of  the  State  have  only  small  causes.  When  a  court  is  organized 
for  the  trial  of  small  causes  it  ought  to  attend  to  its  business  and  try 


902  REVISED  RECORD.  [Monday, 

to  do  it  just  as  well  as  any  other  court  tries  a  million-dollar  cause. 
But,  if  you  enlarge  the  jurisdiction,  and  give  it  million-dollar  causes 
to  try,  it  will  never  attend  to  the  little  causes,  and  you  spoil  your 
court  for  the  trial  of  small  causes,  and  merely  add  another  court  to 
those  which  try  large  ones.  We  propose  by  this  inhibition  upon 
the  Legislature,  to  keep  a  system  of  courts  in  this  State  which  will 
attend  to  the  proper  function  of  properly  trying  the  small  causes, 
in  which  the  great  body  of  the  people  are  more  interested  than  they 
are  in  the  large  ones. 

Mr.  Woodward  —  Will  you  permit  me  to  ask  a  question?  Is 
there  any  provision  in  this  report  that,  the  judge  who  has  once  tried 
the  case  upon  the  facts,  and  his  decision  has  been  reversed,  it  shall 
not  be  brought  before  him  again  for  trial,  but  must  be  taken  before 
some  other  judge,  as  is  the  rule  in  the  case  of  a  referee?  A  referee 
is  never  allowed  to  try  a  case  a  second  time. 

Mr.  Root  —  We  have  not  incorporated  any  such  rule. 

Mr.  Woodward  —  It  seems  to  me  there  should  be  such  a  rule. 

Mr.  Root  —  Mr.  Chairman,  I  think  I  have  covered  the  substantial 
features  of  the  system  which  is  incorporated  in  this  reported  article. 
There  are  many  matters  of  detail  which  I  shall  be  happy  to  explain, 
and  which  the  other  members  of  the  committee  will  be  happy  to 
explain  whenever  called  upon  to  do  so  by  the  members  of  the  Con- 
vention; and  any  further  discussion  or  explanation  I  will  leave  to 
the  time  when  such  occasions  may  arise. 

Mr.  Pratt  —  Mr.  Chairman,  I  do  not  desire  at  the  present  time 
to  discuss  the  merits  of  this  proposed  amendment.  I  would,  how- 
ever, call  the  attention  of  the  Convention  to  what  I  think  is  an  over- 
sight on  the  part  of  the  Judiciary  Committee,  and  which  I  have  no 
doubt  they  will  remedy  upon  its  being  pointed  out  to  them.  On 
page  6  of  the  proposed  amendment,  commencing  at  line  20,  is  this 
provision :  "  After  the  additional  judges  are  elected,  any  seven  mem- 
bers of  the  court  shall  form  a  quorum,  and  the  concurrence  of  five 
shall  be  necessary  for  a  decision."  Now,  Mr.  Chairman,  these 
additional  members  of  the  Court  of  Appeals  will  be  elected  on  the 
first  Tuesday  after  the  first  Monday  in  November.  They  will  not 
be  inducted  into  office  and  become  members  of  the  court  until  the 
first  day  of  the  succeeding  January.  Consequently,  during  the 
months  of  November  and  December,  it  will  be  necessary  to  have 
seven  members  constitute  the  quorum  of  the  Court  of  Appeals. 
Therefore,  the  entire  court,  the  entire  present  court,  will  be  obliged 
to  sit  in  order  to  form  a  quorum,  and,  if  by  any  chance,  any  one 
member  of  that  court  were  disabled  and  unable  to  sit,  it  would  be 


August  20.]  CONSTITUTIONAL  CONVENTION.  903 

impossible  for  the  court  to  conduct  its  business.  The  provision 
reads  that  after  the  election,  instead  of  after  being  inducted  into 
office,  which  I  think  is  an  error. 

Mr.  Root  —  Perhaps,  Mr.  Chairman,  when  we  reach  that  section 
it  may  be  advisable  to  put  in  the  word  "  qualify,"  or  some  such  word, 
as  Mr.  Pratt  suggests. 

Mr.  C.  B.  McLaughlin  —  Mr.  Chairman,  will  Mr.  Root  permit  a 
question?  Why  do  you  fix  the  term  of  the  surrogate  in  the  city  of 
New  York  at  fourteen  years,  and  in  the  other  counties  at  six? 

Mr.  Root  —  Because,  Mr.  Chairman,  that  is  now  the  term  of 
office  in  New  York.  The  people  of  that  city  wanted  it  fourteen 
years,  and  they  got  the  Legislature  to  make  it  fourteen  years,  and 
we  thought  we  would  leave  it  as  it  is. 

Mr.  C.  B.  McLaughlin  —  But  you  are  presenting  a  judiciary  arti- 
cle, a  new  one.  Now,  what  is  the  reason  which  actuated  the  com- 
mittee in  fixing  the  term  of  the  office  of  surrogate  in  that  city  at 
fourteen  years,  and  in  the  other  counties  at  six? 

Mr.  Root  —  Because  in  that  city  the  term  is  now  fourteen  years. 

Mr.  Morton  —  I  should  like  to  ask  the  gentleman  why  it  is  the 
term  of  office  of  the  surrogate  in  Kings  county,  which  is  now  six 
years,  has  been  fixed  in  this  bill  at  fourteen  years? 

Mr  Root  —  That  was  done,  Mr.  Chairman,  because  the  people 
of  Kings  county,'  the  representatives  of  Kings  county,  requested 
that  the  term  should  be  assimilated  to  the  term  in  New  York. 
Whether  it  was  on  general  principles,  or  because  they  anticipate 
and  hope  for  a  consolidation  of  New  York  and  Kings,  I  do  not 
know;  but  that  was  their  expressed  wish.  My  idea  is,  that  if  the 
people  of  any  county  want  the  term  of  such  an  officer  to  be  fourteen 
years,  they  are  entitled  to  have  it. 

Mr.  Morton  —  Mr.  Chairman,  if  the  gentleman  will  allow  me  to 
say,  as  a  representative  in  part  of  the  county  of  Kings,  it  is  the  first 
time  that  I  ever  heard  that  there  was  any  one  in  the  county  of  Kings 
who  desires  the  term  of  this  office  to  be  extended  to  fourteen  years. 
So  far  as  I  am  concerned,  as  a  representative  of  Kings  county,  I  am 
most  decidedly  opposed  to  it. 

Mr.  Dean  —  Mr.  Chairman,  assuming  that  there  will  be  compara- 
tively little  criticism  of  the  magnificent  and  scientific  judiciary  article 
which  is  now  before  us,  I  think  I  may  be  pardoned  for,  at  this  time, 
finding  a  little  fault  with  a  mere  matter  of  detail.  I,  therefore, 
move,  in  section  7,  page  6,  to  strike  out  in  line  17,  all  after  the  word 
"  article,"  and  including  the  word  "  judge  "  in  line  eighteen. 


904  REVISED  RECORD.  [Monday, 

The  Chairman  —  The  Chair  holds  that  the  motion  is  out  of  order. 
We  take  this  up  section  by  section,  and  we  have  not  disposed  of 
section  one. 

Mr.  Dean  —  I  simply  desire  to  say  that  the  scope  of  the  discus- 
sion has  covered  every  section  of  this  article.  If  I  am  out  of  order 
I  am  willing  to  wait. 

The  Chairman  —  The  Chair  so  holds. 

Mr,  J.  Johnson  —  Mr.  Chairman,  as  the  question  of  the  term  of 
office  of  the  surrogate  of  Kings  county  has  been  presented,  I  desire 
to  say 

Mr.  Chipp  —  Mr.  Chairman,  I  rise  to  a  point  of  order.  I  under- 
stand the  Chairman  to  have  ruled  that  the  section  is  not  under 
discussion. 

Mr.  J.  Johnson  —  I  think  I  may  be  allowed  to  correct  a  misstate- 
ment.  It  has  been  stated  that  the  extension  of  the  term  was  made 
with  the  assent  of  and  by  the  request  of  the  members  from  Kings 
county.  While  I  am  quite  certain  that  information  was  conveyed, 
it  was  inaccurate.  I  desire  to  place  myself  in  the  position  which 
was  taken  by  my  colleague  (Mr.  Morton).  It  was  another  member 
of  the  Judiciary  Committee  that  requested  it.  He  understood  it 
was  done  with  my  concurrence. 

Mr.  Jacobs  —  Mr.  Chairman,  I  wish  to  go  on  record  the  same 
way  that  the  other  delegates  from  Kings  county  have  gone.  We 
never  have  heard  of  it  before. 

Mr.  Chipp  —  I  move  to  amend  section  I,  on  page  i,  line  12,  by 
striking  out  the  word  "  twelve  "  and  inserting  in  lieu  thereof  the 
word  "  thirteen."  On  page  2,  line  2,  after  the  word  "  second,"  insert 
the  words,  "  two  in  the  third,"  so  as  to  include  two  additional  judges 
in  the  third  judicial  district,  instead  of  one,  as  provided  by  this 
amendment.  I  presume,  Mr.  Chairman,  we  will  have  full  opportu- 
nity to  discuss  this  matter  hereafter? 

The  Chairman  —  The  question  arises  on  Mr.  Chipp's  amendment. 

Mr.  Chipp  —  Mr.  Chairman,  I  understand  that  this  amendment 
can  all  be  discussed  together.  I  do  not  understand  that  there  has 
been  any  motion  or  resolution  here  that  this  bill  shall  be  discussed 
in  sections.  I  have  other  amendments  to  make  here  to  this  pro- 
posed amendment. 

Mr.  C.  H.  Truax  —  Mr.  Chairman,  I  think  rule  27  provides  for  it. 
Rule  27  says  it  shall  be  considered  in  sections,  unless  otherwise 
ordered. 

The  Chairman  —  Well,  that  is  what  the  Chair  now  holds.     We 


August  20.]  CONSTITUTIONAL  CONVENTION.  905 

have  taken  it  up  section  by  section,  and  must  dispose  of  it  in  that 
way. 

Mr.  Chipp  —  Mr.  Chairman,  I  move  that  we  discuss  this  proposed 
judiciary  amendment  as  a  whole,  and  not  by  sections. 

The  Chairman  —  The  Chair  rules  that  out  of  order;  there  is  a 
motion  before  the  committee  now. 

Mr.  Platzek  —  Mr.  Chairman,  if  in  order,  I  would  like  to  make  a 
motion  to  the  effect  that  we  read  each  section  through,  and  that 
amendments  are  to  be  introduced  to  the  particular  section,  and 
handed  up  to  the  Secretary,  until  all  the  amendments  are  in,  so  that 
they  may  be  printed,  and  that  every 'member  may  distinctly  under- 
stand what  he  is  to  discuss  and  what  he  is  to  act  upon. 

The  Chairman  —  The  Chair  rules  that  out  of  order. 

Mr.  Moore  —  Mr.  Chairman,  I  move  to  suspend  the  rule  in  rela- 
tion to  taking  up  the  judiciary  article  by  sections  at  this  time. 
Mr.  Cochran  —  We  object. 

The  Chairman  — The  Chair  rules  that  motion  out  of  order.  The 
question  is  on  the  motion  of  the  gentleman  from  Ulster,  Mr.  Chipp. 

Mr.  Moore  —  Mr.  Chairman,  I  do  not  understand  that  he  had 
made  any  motion  yet. 

Mr.  McCurdy  —  Mr.  Chairman,  is  it  possible  that  in  this  amend- 
ment we  shall  be  compelled  to  take  this  up  section  by  section,  when, 
if  it  is  properly  drawn,  it  is  so  inter-related  and  so  interdependent 
that  it  is  utterly  impossible  that  we  should  consider  one  section 
separate  and  apart  from  the  others?  It  seems  to  me  that  this,  of  all 
other  amendments  which  have  been  proposed  here,  should  be  con- 
sidered as  an  entirety. 

The  Chairman  —  The  Chair  understands  this  question  to  be  asked 
for  information.  The  Chair  so  holds  unless  the  committee  order 
otherwise. 

Mr.  Vedder  —  Mr.  Chairman,  I  suppose  the  orderly  procedure 
will  be  this,  that  we  read  the  bill  through  first  by  sections,  then  you 
can  amend  the  sections,  if  you  please,  as  you  go  along,  after  which 
amendments  generally  will  be  in  order,  and  you  can  range  over  the 
whole  proposition.  Is  that  the  rule? 

The  Chairman  —  That  is  the  correct  rule. 

Mr.  Moore  —  Mr.  Chairman,  may  I  ask  Mr.  Chipp  a  question  for 
information? 

The  Chairman  —  If  he  consents  you  may. 

Mr.   Chipp  —  Mr.    Chairman,   do   I   understand  that   the   Chair 


906  REVISED  RECORD.  [Monday, 

assented  to  the  statement  from  the  gentleman  from  Cattaraugus 
(Mr.  Vedder)? 

The  Chairman  —  Most  certainly.  The  Chair  understands  that  to 
be  the  practice. 

Mr.  Chipp  —  Then  I  prefer  to  wait  before  making  any  remarks. 

The  Chairman  —  Do  you  withdraw  your  motion? 

Mr.  Chipp  —  Is  not  an  amendment  in  order  at  this  time? 

The  Chairman  —  It  is. 

Mr.  Chipp  —  Yes,  sir. 

Mr.  Cookinham  —  I  understood  him  to  withdraw  it. 

The  Chairman  —  He  has  not  withdrawn  it. 

Mr.  Chipp  —  Mr.  Chairman,  do  I  understand  that  this  is  the  only 
opportunity  that  I  have  to  amend  this  section? 

The  Chairman  —  The  Chair  does  not  so  hold. 

Mr.  Chipp  —  Very  well,  then  I  will  withdraw  it  for  the  moment, 
and  will  offer  it  again. 

Mr.  Vedder  —  Mr.  Chairman,  I  would  like  to  have  an  explanation 
from  the  chairman  of  the  Judiciary  Committee  with  reference  to  the 
last  paragraph  in  section  i :  "And  thereupon  reapportion  the  jus- 
tices to  be  hereafter  elected  in  the  districts  so  altered."  Does  that 
mean  that  the  Legislature  may  change  the  number  of  justices,  differ- 
ent from  the  number  adopted,  if  this  article  is  adopted? 

Mr.  Root  —  Mr.  Chairman,  it  means  that  if  the  Legislature  takes 
a  strip  of  territory,  a  county,  or  two  or  three  counties  out  of  one 
district  and  puts  them  into  another,  that  it  may  determine  in  which 
district  the  judges  thereafter  elected  for  that  territory  shall  be.  In 
other  words,  it  is  necessary  to  have  some  power  to  take  a  judge  out 
of  one  district  and  put  him  into  another  district,  when  you  take 
territory  out  of  one  district  and  put  it  into  another. 

Mr.  Veeder  —  Mr.  Chairman,  I  find  no  such  authority  in  the 
present  Constitution.  They  have  taken  from  article  6,  section  6,  this 
language :  ''  The  Legislature  may  alter  the  districts,  without 
increasing  the  number,  once  after  every  enumeration,  under  this 
Constitution,  of  the  inhabitants  of  the  State."  Now,  I  understand 
that  the  Legislature  may  do  about  what  it  pleases  after  every  enu- 
meration; the  size  of  the  districts  and  the  number  of  judges  that 
shall  be  in  the  district,  regardless  of  this  provision.  I  submit  that 
this  matter  should  have  careful  consideration.  It  is  an  innovation, 
and  a  very  material  one,  I  think. 


August  20.]  CONSTITUTIONAL  CONVENTION.  907 

Mr.  Peck  —  Mr.  Chairman,  I  should  like  to  have  some  statement 
from  the  Committee  on  Judiciary  with  regard  to  the  information  on 
which  this  assignment  of  new  judges  was  made.  I  have  been  told 
since  the  Convention  assembled  that  there  were,  in  certain  districts 
of  the  State,  judges  who  found  it  impossible  to  occupy  themselves 
three  months  in  the  year.  I  do  not  mean  that  they  are  occupied 
three  months  in  the  year,  but  that  there  was  no  possibility  growing 
out  of  the  business  of  the  district  that  any  one  judge  should  be 
occupied  three  months  in  the  year,  and  yet  in  those  districts  we 
have  assigned  to  them  by  this  committee  a  new  justice  of  the 
Supreme  Court.  Now,  in  the  district  in  which  I  have  the  fortune 
to  practice,  the  Third  Judicial  District  of  the  State,  we  have  at  this 
time  but  two  trial  justices,  our  justices  are  occupied  all  the  time, 
and  we  are  assigned  a  single  justice  of  the  Supreme  Court  in  addi- 
tion to  those  we  now  have.  It  seems  to  me  that  this  apportionment 
of  the  new  justices  of  the  Supreme  Court  cannot  have  been  based 
upon  information  with  regard  to  the  present  business  of  the  courts 
in  the  different  districts.  I  agree,  so  far  as  Mr.  Chipp's  amend- 
ment is  concerned,  that  we  should  have,  in  the  Third  judicial  dis- 
trict, another  justice  of  the  Supreme  Court,  in  addition  to  those 
assigned  to  us  in  this  first  section.  I  think  that  that  might  be  done 
without  increasing  the  number  of  Supreme  Court  justices,  if  they 
were  assigned  or  apportioned  among  the  districts  according  to  the 
present  business  of  the  courts. 

Mr.  Smith  —  Mr.  Chairman,  I  rise  to  a  question  of  order.  The 
gentleman  from  Cattaraugus  (Mr.  Vedder)  made  a  motion  as  to  the 
order  of  procedure,  and  it  has  not  been  acted  upon. 

The  Chairman  —  The  Chair  did  not  so  understand.  He  was 
merely  explaining  what  the  Chair  understands  to  be  the  general 
order  of  procedure. 

Mr.  Barhite  —  Mr.  Chairman,  I  ask  permission  to  ask  the  chair- 
man of  the  Judiciary  Committee  a  question.  On  page  8,  section  10, 
I  find  the  following  words:  "  The  judges  of  the  Court  of  Appeals 
and  the  justices  of  the  Supreme  Court  shall  not  hold  any  other 
office  or  public  trust.  All  votes  for  any  of  them,  for  any  other  than 
a  judicial  office,  given  by  the  Legislature  or  the  people,  shall  be 
void."  Would  not  that  prevent  the  election  of  a  judge  of  the  Court 
of  Appeals  or  a  justice  of  the  Supreme  Court  to  a  Constitutional 
Convention?  And  if  it  would,  is  there  any  reason  why  a  judge 
should  not  sit  in  such  a  body?  Is  not  that  the  one  body  over  and 
above  all  others,  in  which  all  classes  and  conditions  of  people  should 
be  allowed  to  sit?  Is  it  not  a  fact  that  manv  of  the  most  eminent 


908  REVISED  RECORD.  [Monday, 

judges  who  have  ever  lived  or  sat  upon  the  bench  in  this  country 
have  been  members  of  Constitutional  Conventions? 

Mr.  Dean  —  Mr.  Chairman,  I  rise  to  a  point  of  order.  The  Chair 
has  held  that  this  is  to  be  considered  section  by  section.  The  gen- 
tleman is  discussing  section  8. 

The  Chairman  —  He  is  simply  asking  the  question. 

Mr.  Root  —  Mr.  Chairman,  in  answer  to  the  question  of  the 
gentleman  from  Monroe  (Mr.  Barhite)  I  would  say  that  the  para- 
graph is  precisely  as  it  stands  in  the  present  Constitution.  We  did 
not  see  any  adequate  cause  for  changing  it  so  we  have  left  it  as  it 
was.  I  can  conceive  that  there  might  be  circumstances  arising  in  a 
Constitutional  Convention  which  would  make  it  perhaps  awkward 
for  a  justice  of  the  Supreme  Court,  or  a  judge  of  the  Court  of 
Appeals,  to  take  part  in  its  discussion. 

Mr.  Vedder  —  Mr.  Chairman,  it  may  be  pertinent  now  to  ask  a 
question  of  the  chairman  of  the  Judiciary  Committee,  and  I  do  it  for 
my  own  information.  In  section  i  it  makes  provision  for  twelve 
additional  justices.  The  language  is,  "  The  Supreme  Court  shall 
consist  of  the  Supreme  Court  judges  now  in  office,  and  of  the 
justices  transferred  thereto  by  the  fifth  section  of  this  article,  all  of 
whom  shall  continue  to  be  justices  of  the  Supreme  Court  during 
their  respective  terms,  and  of  twelve  additional  justices."  Are  the 
twelve  justices  in  addition  to  the  justices  who  will  be  made  such, 
coming  from  the  City  Courts  of  New  York,  and  of  Brooklyn,  the 
Superior  Court  of  Buffalo,  and  so  forth? 

Mr.  Root  —  They  are. 

Mr.  Vedder  —  That  makes  how  many  justices  of  the  Supreme 
Court  in  addition  to  those  we  now  have? 

Mr.  Root  —  It  will  make  twelve  more  judges  than  we  have,  and 
thirty  more  in  the  Supreme  Court. 

Mr.  Maybee  —  Mr.  Chairman,  I  desire  to  ask  the  chairman  of  the 
Judiciary  Committee  a  question.  Will  he  tell  the  Convention  why 
it  is  proper  to  abolish  the  name  of  Court  of  Sessions,  and  why  it  is 
not  necessary  to  make  it  harmonious  to  abolish  the  name  of  the 
Court  of  Special  Sessions,  and  confer  its  jurisdiction  on  justices  of 
the  peace  and  police  justices?  What  sense  13  there  in  maintaining 
the  name  of  Court  of  Special  Sessions  when  there  is  no  Court  of 
Sessions  existing? 

The  Chairman  —  If  there  are  no  further  amendments  to  the  first 
section  the  Secretary  will  read  the  second  section. 


August  20.]  CONSTITUTIONAL  CONVENTION.  909 

Mr.  Forbes  —  Mr.  Chairman,  as  I  understand  it,  amendments  can 
be  handed  in  after  the  sections  are  all  read.  Is  not  that  the  fact? 

The  Chairman  —  Yes;  after  the  proposition  has  been  considered 
section  by  section  and  acted  upon,  then  amendments  generally  may 
be  in  order. 

Mr.  Forbes  —  Otherwise  I  would  present  an  amendment  at  the 
present  time,  but  I  do  not  care  to  have  it  voted  upon  because  it  will 
call  up  a  general  discussion  in  regard  to  the  fifth  section,  abolishing 
the  Court  of  Common  Pleas  and  Superior  Courts. 

The  Chairman  —  If  there  are  no  further  amendments  to  section  i, 
the  Secretary  will  read  section  2. 

Mr.  E.  R.  Brown  —  I  would  like  to  make  some  remarks  on  sec- 
tion i,  or  the  last  section  under  discussion.  I  would  like  to  suggest 
to  the  Convention,  if  I  am  in  order,  in  relation  to  the  increase  of 
judges  proposed  by  this  section,  that  I  believe  it  to  be  a  very 
doubtful  expedient.  I  should  not  object  to  a  provision  in  this 
article  which  would  enable  the  Legislature,  as  the  public  interests 
require,  to  give  an  additional  judge,  or  two  or  more,  to  the  districts 
of  this  State ;  but  I  do  not  believe  that  there  is  a  gentleman  sitting  in 
this  hall  who  believes  that  if  an  amendment  were  submitted  to  the 
people  of  the  State  to-day  for  an  increase  of  the  Supreme  Court 
judges  by  twelve,  and  for  an  addition  to  the  Supreme  Court  bench 
of  the  eighteen  judges  in  the  Superior  Courts  and  the  Common 
Pleas  in  this  State,  that  it  would  be  adopted.  I  feel  it  my  duty, 
although  I  approve  of  this  report  in  its  general  tenor,  and  in  the 
purposes  which  it  accomplishes,  to  call  the  attention  of  the  Con- 
vention to  what  I  believe  will  be  likely  to  be  the  source  of  fatal 
criticism  to  the  work  of  this  Convention. 

Mr.  Bowers  —  May  I  ask  the  gentleman  a  question?  Do  I 
understand,  Mr.  Brown,  that  your  objection  to  the  increase  of  the 
number  of  judges  is  because  you  believe  that  they  are  not  needed, 
or  because  you  merely  fear  criticism? 

Mr.  Brown  —  It  is  both.  I  desire  to  say  one  word  more  in  reply 
to  the  gentleman,  which  suggests  itself  to  my  mind.  It  has  been 
claimed  that  the  division  of  the  jurisdiction  in  New  York  city,  in 
Brooklyn  and  in  Buffalo  made  the  same  number  of  judges  less 
efficient  by  the  establishment  of  separate  rules  of  procedure,  by  the 
establishing  of  separate  General  Terms,  calling  for  General  Term 
duties  by  those  judges.  Now,  if  these  judges  are  all  carried  into 
the  Supreme  Court,  they  represent  a  force  greater,  how  much 
greater  I  do  not  know,  but  certainly  much  greater  than  they  would 
be  when  sitting  in  the  courts  as  they  are  now  organized;  and  I 


9io  REVISED  RECORD.  [Monday, 

believe  that  this  Convention  should  wait  and  see  whether  they  are 
sufficient  to  perform  the  duties  which  devolve  upon  the  Supreme 
Court  with  this  additional  efficiency  before  we  provide  twelve  addi- 
tional judges  in  this  State.  I  believe,  sir,  as  matter  of  my  own  per- 
sonal opinion,  but  I  do  not  desire  to  be  too  forward  in  advancing  it, 
inasmuch  as  I  do  not  reside  in  any  one  of  those  cities,  I  believe  that 
the  addition  of  these  eighteen  judges  will  be  sufficient  to  arm  the 
General  Terms  in  those  departments  without  creating  additional 
Supreme  Court  judges. 

Mr.  Griswold  —  May  I  ask  the  gentleman  who  spoke  last  a  single 
question.  If  you  leave  it  entirely  open  to  the  Legislature,  and  leave 
them  unrestricted,  to  provide  as  many  judges  as  they  see  fit,  is  there 
not  great  danger  that  different  districts  and  different  localities,  in 
creating  new  judges,  will  unnecessarily  increase  their  number?  I 
would  like  to  ask  whether  it  would  not  be  better  to  settle  that  matter, 
if  it  be  desirable  to  have  any  more  judges,  rather  than  to  leave  it 
open  to  constitutional  amendment  through  the  Legislature? 

Mr.  E.  R.  Brown  —  Mr.  Chairman,  I  did  not  expect  to  answer 
interrogatories,  but  I  take  pleasure  in  saying  that  one  of  the  mem- 
bers of  the  Judiciary  Committee  is  chairman  of  the  Committee  on 
Future  Amendments;  that  he  is  now  proposing  in  this  Convention 
an  amendment  which  will  virtually  prevent  our  getting  amendments 
adopted  in  the  future,  by  amendments  to  the  Constitution  submitted 
to  the  people  for  that  purpose,  and  rather  than  to  have  it  so  that  we 
could  not  meet  the  wants  of  the  people  in  this  regard,  I  would 
submit  it  to  the  Legislature.  I  would  prefer  greatly  to  leave  it  to 
the  Legislature,  with  a  more  hopeful  view  of  what  that  body  is 
likely  to  do  in  performing  a  great  public  duty,  than  I  would  to  tie 
it  up  so  that  nothing  could  be  done.  I  would  much  prefer  it, 
Mr.  Chairman,  to  taking  action  here  which  I  believe  would  subject 
this  Convention,  as  a  body,  and  individually,  to  the  charge  of  having 
made  a  grab-bag  of  the  treasury  of  the  State  for  a  body  composed 
mostly  of  lawyers.  I  regret  and  deplore  such  criticism  when  it  is 
applied  to  myself,  or  to  the  body  to  which  I  belong.  Such  criticism 
is  already  spreading  throughout  the  State,  and  I  believe  that  we 
ought  to  be  very  careful,  and  if  we  are  to  err,  to  err  upon  the  side 
of  economy  and  of  modesty,  instead  of  upon  the  side  of  extravagance 
and  of  private  aggrandizement. 

Mr.  Davenport  —  Mr.  Chairman,  if  we  are  to  consider  the 
question 

The  Chairman  —  If  the  gentleman  will  permit,  I  desire  to  call  his 
attention  to  the  fact  that  there  is  no  motion  before  the  committee, 


August  20.]  CONSTITUTIONAL  CONVENTION.         <  911 

and  that  hereafter  the  Chair  will  expect  a  motion  before  there  is 
discussion. 

Mr.  Davenport  —  I  understood  that  there  was  a  motion  upon  the 
first  section.  If  not,  I  will  move  to  strike  out  the  first  section  of  the 
article. 

Mr.  Bowers  —  I  make  the  point  of  order  that  there  is  a  motion 
before  this  body  now  to  increase  the  number  of  judges  in  the  third 
district. 

The  Chairman  —  That  motion  was  withdrawn. 
Mr.  Bowers  —  Then  there  is  no  motion  pending? 
The  Chairman  —  None,  whatever. 

Mr.  Davenport  —  I  will  move  then  to  strike  out  the  first  section, 
and  in  considering  that  I  beg  to  say,  that  if  we  are  to  consider  this 
question  upon  the  plan  which  has  been  suggested,  and  well  sug- 
gested, by  the  gentleman  from  New  York  (Mr.  McCurdy)  it  is 
necessary  that  we  should  look  at  the  whole  situation  as  we  find  it  in 
this  State.  If  we  find  by  experience  and  by  examination  that  there 
are  changes  that  are  necessary,  it  would  ill  become  our  courage,  if, 
in  the  view  of  possible  criticism  for  doing  what  is  right,  we  should 
hesitate  to  make  them.  Will  you,  therefore,  Mr.  Chairman,  permit  me 
to  call  attention  to  the  condition  in  which  this  article  as  a  whole  would 
leave  theSecond  Judicial  Department  of  this  State.  I  speak  with  an 
experience  relating  to  it  of  a  quarter  of  a  century.  We  have  to-day 
in  that  department  six  Supreme  Court  judges.  We  have  three 
judges  of  the  City  Court  of  Brooklyn,  making  nine,  and  the  article 
proposes  to  add  three,  making  twelve  judges  of  the  Supreme  Court. 
It  is  proposed  that  five  shall  sit  in  an  Appellate  Division  for  the 
review  of  the  work  which  belongs  to  a  department  with  over  a 
million  and  a  half  of  population,  including  the  second  great  city  of 
this  State,  with  commercial  questions  arising  from  its  warehouses 
and  its  manufactories  which  are  second  only  in  importance  to  those 
of  the  city  of  New  York.  Is  it  reasonable  to  suppose  that  the  work 
of  five  judges  in  the  Appellate  Division  of  that  court  would  be 
sufficient  to  occupy  their  time  and  attention,  if  there  were  less  than 
seven  judges  sitting  below  to  do  the  work  necessary  for  that  divi- 
sion? Is  it  possible  that,  with  the  present  condition  existing  where 
there  are  six  Supreme  Court  judges  constantly  at  work,  in  addition 
to  the  General  Term  work  now  upon  them,  and  three  industrious 
judges  occupied  with  the  work  of  the  City  Court  of  the  city  of 
Brooklyn,  there  can  be  any  doubt  that  there  will  be  need  of 
seven  judges  actually  at  work  in  the  Circuit  and  in  the  Special 


912  REVISED  RECORD.  [Monday, 

Term  of  that  great  department,  including  as  it  does  nine  important 
counties  of  this  State?  I  withdraw  my  motion  to  strike  out. 

Mr.  Dickey  —  Mr.  Chairman,  I  renew  the  motion  for  the  purpose 
of  calling  the  attention  of  the  gentleman  from  Jefferson  county  (Mn 
E.  R.  Brown)  to  the  fact  that  the  Legislature  he  regards  so  highly, 
has  not  only  in  one  year,  but  two  years,  passed  amendments  to  the 
Constitution  that  are  to  be  voted  upon  this  coming  fall  increasing 
the  number  of  judges  in  each  of  the  districts  of  the  State,  two  in  the 
first  and  two  in  the  second  divisions,  and  this  bill  as  proposed  by  the 
Judiciary  Committee  only  adds  one  to  each  of  those  divisions.  I 
may  say,  while  I  am  on  my  feet,  that  my  own  experience  agrees  with 
the  experience  of  the  gentleman  who  last  spoke  (Mr.  Davenport,  of 
Kings),  that  the  three  additional  judges  provided  for  in  this 
amendment  are  not  unnecessary,  but  on  the  contrary  they  might 
well  have  provided  for  a  larger  increase,  and  in  proposing  three  only 
in  each  of  the  departments  they  have  been  very  moderate  indeed, 
and  that  there  should  be  no  change  in  this  provision.  The  people 
will  gladly  sanction  this  increase  at-  the  polls  when  they  come  to 
vote  upon  the  question. 

Mr.  O'Brien  —  Mr.  Chairman,  I  would  like  to  ask  the  gentleman 
from  New  York  (Mr.  Root)  a  question  in  regard  to  the  first  section, 
as  to  what  effect  the  appointment  of  these  judges,  provision  for 
whose  appointment  is  contained  in  this  first  article,  will  have  upon 
the  present  pending  constitutional  amendment  for  the  appointment 
of  the  four  extra  judges. 

Mr.  Root  —  Our  view  is  that  it  adopts  those  same  judges. 

Mr.  O'Brien  —  But  does  not  increase? 

Mr.  Root — No;  is  not  additional. 

Mr.  Kellogg  —  Mr.  Chairman,  I  move  to  strike  out  the  section. 

The  Chairman  —  There  is  a  motion  now  pending.  Mr.  Dickey's 
motion  is  pending;  you  may  speak  to  that  if  you  wish. 

Mr.  Dickey  —  I  withdraw  my  motion  in  order  that  my  friend 
may  make  it. 

Mr.  Kellogg  —  Then  I  renew  the  motion.  Mr.  Chairman,  it 
seems  to  me  the  objection  made  by  the  gentleman  from  Jefferson 
(Mr.  E.  R.  Brown)  is  not  well  taken.  We  have  in  our  judicial  dis- 
trict at  the  present  time,  five  justices  of  the  Supreme  Court,  and  in 
the  adjoining  judicial  district  there  are  five.  That  would  make  ten 
judges  of  the  Supreme  Court  in  one  department.  Adding  one  in 
each  of  the  judicial  districts,  would  make  twelve  in  the  department 
Subtract  five  for  the  court  of  appellate  jurisdiction  and  you  only 
have  seven  justices  left  to  do  the  business  in  two  districts,  leaving 
four  in  one  and  three  in  the  other.  It  would  be  absolutely  impos- 


August  20.]  CONSTITUTIONAL  CONVENTION.  913 

sible  for  three  judges  to  perform  the  duties  which  they  ought  to 
perform  in  our  judicial  district,  and  instead  of  the  proposed  amend- 
ment increasing  the  number  of  the  justices  of  the  Supreme  Court, 
one  in  each  judicial  department,  it  might  well  and  with  safety 
increase  the  number  to  two.  This  talk  about  increasing  the  expense 
of  the  people  and  shivering  in  your  boots  over  it  should  not  be  con- 
sidered. It  seems  to  me  simply  a  question  of  expediency  as  to 
whether  it  is  right  and  equitable.  I  withdraw  my  motion  to  strike 
out. 

Mr.  Peck  —  I  renew  the  motion  for  the  purpose  of  asking  the 
question  again,  on  what  information  and  with  what  view  this 
apportionment  of  judges  was  made,  one  to  each  in  other  than  the 
first  and  second  districts.  It  seems  to  me  that  the  information  must 
have  been  incorrect. 

Mr.  Root  —  We  did  not  think  so,  Mr.  Chairman.  Our  informa- 
tion about  the  third  district  is  that  with  one  additional  justice, 
it  would  have  sufficient  force  to  do  this  work,  in  consideration  of 
the  fact  that  one  justice  who  is  now  taken  from  the  third  district 
and  put  into  the  General  Term  in  New  York  would  come  back ;  and 
when  the  Governor  is  making  up  the  Appellate  Division,  we 
assume  that,  of  course,  he  would  consult  the  needs  of  the  several 
judicial  districts  in  making  the  selection  of  the  judges. 

Mr.  Crosby  —  Mr.  Chairman,  I  would  like  to  inquire  of  the  chair- 
man of  the  Judiciary  Committee  whether  or  not  the  committee  has 
considered  the  situation  that  our  Constitution  and  legislation  will 
be  placed  in,  if  the  concurrent  resolution  which  has  been  passed  by 
two  successive  Legislatures  and  is  to  be  voted  upon  by  the  people 
shall  be  adopted,  and  also  section  I  of  the  proposed  amendment; 
the  concurrent  resolution  providing  in  terms  that  the  Legislature,  at 
the  first  session  thereof  after  the  adoption  of  this  amendment  shall 
provide  for  the  election,  at  the  general  election  next  after  the  adop- 
tion of  this  amendment,  by  the  electors  of  the  First  Judicial  District, 
of  not  more  than  two  judges  of  the  Supreme  Court  in  addition  to 
the  justices  now  in  office  in  said  district,  by  the  election  in  the 
Second  Judicial  District,  of  not  more  than  three  justices  of  the 
Supreme  Court,  in  addition  to  those  now  in  office,  the  proposed 
constitutional  amendment  containing  a  provision  that  there  shall  be 
elected  three  in  the  first  district  and  three  in  the  second  district. 
My  question  is,  has  the  committee  considered  what  would  be  the 
situation  if  both  of  these  provisions  should  be  adopted? 

Mr.  Root  —  Mr.  Chairman.  I  shall  be  glad  to  repeat  my  explana- 
58 


914  REVISED  RECORD.  [Monday, 

tion  to  Mr.  Crosby.  The  committee  has  considered  that  question, 
and  we  are  clearly  of  the  opinion  that  the  justices  provided  for  by 
the  concurrent  resolution  would  form  a  part  of  the  additional  jus- 
tices by  this  article.  We  also  considered  that  to  obviate  any  pos- 
sible question  upon  that  subject  it  would  be  appropriate,  in  the  final 
article  which  it  will  be  necessary  to  insert  in  regard  to  the  submis- 
sion, to  provide  what  shall  be  the  relations  between  the  Constitu- 
tion which  we  submit  and  the  various  constitutional  amendments 
which  are  all  ready  to  come  before  the  people  under  the  action  of  the 
Legislature,  so  that  any  possibility  of  a  reduplication  of  provisions 
for  additional  justices  will  be  obviated. 

The  Chairman  —  The  question  now  arises  on  the  motion  of  the 
gentleman  from  Rensselaer  (Mr.  Peck),  to  strike  out  the  first  sec- 
tion of  this  proposition. 

Mr.  Peck  —  I  withdraw  that  motion. 

Mr.  Barhite  —  I  renew  it,  Mr.  Chairman.  The  government  of 
the  State  of  New  York,  like  all  Gaul,  is  divided  into  three  parts  — 
the  executive,  the  legislative  and  the  judiciary.  The  function  of 
each  of  these  separate  departments  of  the  government  is  separate 
and  distinct  from  the  others.  The  number  of  persons  who  shall 
constitute  the  executive  department,  the  number  of  persons  who 
shall  constitute  the  legislative  department,  is  defined  by  the  Con- 
stitution of  the  State;  and,  I  believe,  the  judicial  department,  both 
as  to  its  functions,  its  duties,  its  jurisdiction,  and  the  number  of 
persons  who  shall  compose  it,  should  be  fixed  and  prescribed  by  the 
Constitution  itself.  I  do  not  believe  this  most  important  depart- 
ment of  all  —  the  judiciary  —  upon  which  we  must  depend  to 
preserve  us  from  political  machinations,  should  be  left  in  any- 
wise under  the  control  of  either  the  executive  or  legislative  depart- 
ment. I  believe  it  is  the  duty  of  the  delegates  in  this  Convention 
to  say,  in  their  judgment,  how  many  justices  of  the  Supreme 
Court  should  compose  that  court.  If  the  people  of  the  State,  at  the. 
next  election,  are  not  satisfied  with  that  judgment,  they  can  show 
their  displeasure  by  voting  it  down.  During  the  discussion  upon 
the  women's  suffrage  question  the  other  evening,  one  strong  argu- 
ment that  was  brought  up  against  the  submission  of  the  proposed 
amendment  to  the  people,  was  that  it  is  the  duty  of  the  delegates 
in  this  Convention  to  pass  upon  that  question,  that  they  should  not 
attempt  to  avoid  the  issue  by  saying  that  we  are  in  doubt,  we  do  not 
know  what  should  be  done,  but  we  should  submit  it  to  the  people  of 
the  State.  If  that  argument  was  good  upon  that  amendment,  it  is 
good  upon  this  proposed  amendment  of  the  judiciary  article.  If 


August  20.]  CONSTITUTIONAL  CONVENTION.  915 

we  should  pass  upon  the  number  of  judges  required  in  the  Supreme 
Court,  we  should  express  that  judgment  here  and  now.  I  do  not 
believe  in  turning  over  to  the  Legislature  the  power  of  determining 
whether  there  should  be  a  greater  or  a  less  number  of  judges.  I  am 
in  favor  of  section  i  as  it  has  been  submitted.  I  withdraw  my 
motion. 

Mr.  E.  R.  Brown  —  Mr.  Chairman,  is  amendment  to  section  I 
now  in  order? 

The  Chairman  —  An  amendment  is  in  order. 

Mr.  E.  R.  Brown  —  I  desire  to  offer  an  amendment  to  section  I, 
to  strike  out  in  line  12,  on  page  i,  commencing  with  the 
word  "and"  after  the  word  "term,"  to  and  including  the  word 
"districts"  in  line  2,  on  page  2;  also  in  line  three,  the  words 
"and  their  successors,"  and  substitute  therefor,  "the  Legislature 
may,  as  the  public  interests  require  create  not  exceeding  twelve 
additional  justices,  as  follows." 

Mr.  Root  —  As  but  five  minutes  remain  before  the  gavel  will  fall, 
I  move  that  the  committee  rise,  and  I  hope  that  we  may  retain  our 
place  and  continue  the  discussion  of  this  article  this  evening.  For 
that  purpose  I  move  that  the  committee  rise,  report  progress,  and 
ask  leave  to  sit  again  this  evening  on  this  proposed  amendment. 
Mr.  Chairman,  I  would  like  to  ask  for  information,  if  we  take  our 
recess,  still  in  Committee  of  the  Whole  upon  this  subject,  whether 
we  will  be  in  Committee  of  the  Whole  on  this  subject  when  we 
come  together? 

The  Chairman  —  I  think  that  is  correct. 

Mr.  Bowers  —  I  make  the  point  of  order,  that  if  we  adjourn  at 
five  o'clock,  we  meet  at  eight  o'clock  in  Committee  of  the  Whole 
upon  this  subject. 

The  Chairman  —  The  Chair  so  holds. 

Mr.  Titus  —  Mr.  Chairman,  I  move  that  we  take  a  recess  until 
eight  o'clock. 

The  Chairman  —  The  Chair  rules  that  the  motion  is  out  of  order. 
We  are  in  Committee  of  the  Whole  and  should  proceed  until  five 
o'clock. 

Mr.  McKinstry  —  Mr.  Chairman,  may  I  ask  the  gentleman  from 
New  York  a  question.  Who  pays  the  judges  of  the  Court  of  Com- 
mon Pleas  and  the  Superior  Court  now?  Are  they  paid  by  the 
State  at  large,  or  by  the  cities? 

Mr.  Root  —  I  will  ansewer  the  gentleman's  question.  They  are 
paid  by  the  cities  in  which  they  are  elected. 


916  REVISED  RECORD.  [Monday, 

The  President  here  resumed  the  chair. 

The  President  —  We  are  now  in  Convention,  Mr.  Root  will  con- 
tinue his  remarks  at  eight  o'clock. 

Mr.  Alvord  —  Mr.  President,  I  move  that  the  judiciary  article  be 
a  special  order  at  each  and  every  session  of  this  body  until  it  shall 
have  been  perfected. 

The  President  put  the  question  on  Mr.  Alvord's  motion,  and  it  was 
determined  in  the  affirmative. 

The  hour  of  five  o'clock  having  arrived,  the  Convention  took  a 
recess  until  eight  o'clock  in  the  evening. 


EVENING  SESSION. 
Monday  Evening,  August  20,  1894. 

The  Constitutional  Convention  of  the  State  of  New  York  met  in 
the  Assembly  Chamber,  in  Albany,  N.  Y.,  August  20,  1894,  at  eight 
o'clock  P.  M. 

President  Choate  called  the  Convention  to  order. 

Mr.  Barhite  —  Mr.  President,  before  we  go  into  Committee  of  the 
Whole  I  desire  to  call  attention  to  the  motion  which  was  made  by 
my  distinguished  friend,  Governor  Alvord,  that  the  committee 
should  sit  continuously  upon  this  judiciary  article  until  it  was  dis- 
posed of.  Several  members  of  the  Convention  have  spoken  to  me 
about  the  matter,  and  it  seems  to  be  the  opinion  that  in  so  important 
a  matter  as  this,  we  should  not  bind  ourselves  to  past  history  upon 
it.  I  do  not  desire  to  delay  the  work  of  the  Convention  or  to  make 
any  motions  which  will  be  of  no  benefit,  but  I  think  that  this  motion 
ought  to  be  reconsidered,  and  if  it  is  passed  upon  favorably  I  shall 
immediately  follow  that  with  a  motion  that  it  lie  upon  the  table  and 
then  the  Convention  can  take  such  action  in  the  matter  as  subse- 
quent proceedings  may  make  proper. 

The  President  —  You  move  to  reconsider,  and  to  lay  it  upon  the 
table? 

Mr.  Barhite  —  I  simply  make  the  motion  to  reconsider,  Mr. 
President,  and  if  it  is  carried  I  shall  make  the  motion  to  lay  upon  the 
table. 

Mr.  Root  —  Mr.  President,  I  have  no  desire  that  the  Convention 
shall  take  up  any  undue  time  or  give  any  undue  preference  to  the 
judiciary  article.  That  motion  was  made  and  seemed  to  be  carried 
promptly,  without  any  opposition.  The  only  thing  I  should  like  to 
suggest  is  this,  that  the  discussion  upon  the  judiciary  article,  now 


August  20.]  CONSTITUTIONAL  CONVENTION.  917 

that  it  is  commenced,  should  continue  until  the  views  of  the  mem- 
bers of  the  Convention  shall  be  fully  developed,  so  that  when  we 
take  a  recess  in  the  discussion,  it  may  be  a  fruitful  and  useful  recess, 
and  the  whole  business  not  be  postponed  by  it.  Now,  if  Mr.  Barhite 
will  make  this  motion  to  reconsider  and  let  that  lie  upon  the 
table  - 

The  President  —  The  Chair  would  advise  Mr.  Barhite  that  if  he 
wishes  to  keep  the  matter  in  the  control  of  the  Convention  that  is 
the  way  to  do  it. 

Mr.  Barhite  —  I  will  consent  to  that,  Mr.  President. 

The  President  put  the  question  on  the  motion  of  Mr.  Barhite  that 
the  motion  of  Mr.  Alvord  be  reconsidered,  and  that  motion  lie  on 
the  table,  and  it  was  determined  in  the  affirmative. 

Mr.  Hamlin  —  Mr.  President,  owing  to  a  pressing  business 
engagement  I  would  like  to  be  excused  from  attendance  to-morrow 
and  next  day. 

The  President  put  the  question  on  the  request  of  Mr.  Hamlin  to 
be  excused  from  attendance,  and  he  was  so  excused. 

Mr.  Lincoln  —  Mr.  President,  I  move  that  the  privileges  of  the 
floor  be  extended  to  Mr.  A.  W.  Ferrin,  of  Salamanaca,  N.  Y.,  editor 
of  the  Cattaraugus  Republican. 

The  President  put  the  question  on  the  motion  of  Mr.  Lincoln,  and 
it  was  determined  in  the  affirmative. 

Mr.  Kellogg  —  Mr.  President,  I  have  no  desire  to  delay  the  Con- 
vention by  excuses.  I  think  I  have  been  excused  twice  for  sick- 
ness. The  Otsego  County  Firemen's  Association  elected  me  as 
their  representative  at  the  State  firemen's  convention  which  con- 
venes in  Oswego  to-morrow.  I  should  like  very  much  to  attend  in 
obedience  to  their  request  if  the  Convention  thinks  that  is  a  suffi- 
cient excuse. 

The  President  put  the  question  on  the  request  of  Mr.  Kellogg  to 
be  excused  from  attendance,  and  he  was  so  excused. 

Mr.  Alvord  —  Mr.  President,  I  move  that  the  privileges  of  the 
floor  be  granted  to  the  Rev.  Dr.  Raymond,  president  of  Union 
College.  , 

The  President  put  the  question  on  the  motion  of  Mr.  Alvord,  and 
it  was  determined  in  the  affirmative. 

Mr.  T.  A.  Sullivan  —  Mr.  President,  I  desire  to  ask  for  an  excuse 
on  behalf  of  Mr.  Putnam.  I  would  have  done  it  earlier,  but  he 
hoped  to  be  able  to  be  present  to-day.  He  is  unable  to  be  here  on 
account  of  illness. 


918  REVISED  RECORD.  .    [Monday, 

The  President  put  the  question  on  the  request  of  Mr.  Putnam  to 
be  excused  from  attendance,  and  he  was  so  excused. 

Mr.  Cornwell  —  Mr.  President,  I  would  like  to  be  absent  on 
Friday  and  Saturday  of  this  week. 

The  President  put  the  question  on  the  request  of  Mr.  Cornwell 
to  be  excused  from  attendance,  and  he  was  so  excused. 

Mr.  Crosby  —  Mr.  President,  I  should  like  to  inquire  when  the 
copies  of  the  judiciary  article  will  be  ready  for  delivery.  I  intended 
to  send  some  to  my  constituents,  who  are  lawyers,  for  their  exam- 
ination, but  I  was  unable  to  obtain  them. 

The  President  —  Perhaps  Mr.  Hamlin  can  answer  the  question  as 
to  when  the  copies  of  the  judiciary  article  will  be  ready  for  distribu- 
tion. 

Mr.  Hamlin  —  Mr.  President,  I  inquired  about  it  this  morning, 
expecting  they  would  be  upon  the  files,  but  was  informed  by  The 
Argus  Company  that  for  some  reason  they  would  be  unable  to 
supply  them  until  to-morrow,  and  that  they  would  be  ready  for  dis- 
tribution to-morrow  morning. 

Mr.  Acker  resumed  the  chair  in  Committee  of  the  Whole  upon 
the  matter  pending  at  the  time  recess  was  taken. 

The  Chairman  —  The  question  before  the  committee  is  the 
amendment  offered  by  Mr.  Brown,  of  Jefferson,  which  the  Secre- 
tary will  please  read. 

The  Secretary  read  the  amendment  of  Mr.  Brown  as  follows: 

"Strike  out  all  of  line  12,  page  i,  after  the  word  'terms,'  and 
lines  i  and  2,  page  2,  to  and  including  the  word  '  district/  and 
the  words  '  and  of  their  successors '  in  line  3  on  page  2,  and 
substitute  the  following  words,  'but  the  Legislature  may,  as  the 
public  interests  require,  create  not  exceeding  twelve  additional  jus- 
tices as  follows.' " 

Mr.  Cookinham  —  Mr.  Chairman,  I  observe  that  Mr.  Brown  is 
not  in  the  chamber.  This  is  a  very  important  amendment.  I  hope 
the  motion  will  not  be  put  until  he  may  return  to  the  chamber. 
Unquestionably  he  desires  to  be  heard  upon  it.  I  would  suggest,  as 
I  had  intended  to  suggest  before,  that  this  article  be  read,  and  as 
each  section  is  read,  amendments  be  proposed  to  it,  and  that  after 
we  have  gone  through  with  it  in  that  way,  we  should  vote  upon  the 
amendments.  I  realize  that  there  will  be,  perhaps,  some  amend- 
ments made;  those  amendments  may  absolutely  require  some  other 
amendments  in  other  sections,  and  it  seems  to  me  that  we  will  pro- 
ceed more  rapidly  if  we  read  it  through,  and  then  commence  with 


August  20.]  CONSTITUTIONAL  CONVENTION.  919 

the  first  section  and  vote  upon  the  amendments.    I  make  that  sug- 
gestion.    I  will  make  it  in  the  form  of  a  motion  if  it  be  necessary. 

The  Chairman  —  The  Chair  sees  no  other  way  than  to  put  the 
motion  as  made  by  Mr.  Brown. 

Mr.  C.  A.  Fuller  —  Mr.  Chairman,  it  seems  to  me  that  if  this 
Convention  pursues  the  practice  of  deferring  action  upon  matters 
because  the  mover  of  an  amendment  is  not  present,  it  will  have  a 
tendency  to  build  up  a  system  of  shiftlessness  and  delay  that  will 
very  much  impede  our  action.  I  believe  it  is  the  duty  of  those  who 
introduce  measures  and  who  offer  amendments  to  see  to  it  that  they 
are  present  to  take  care  of  them,  and  not  have  any  expectation  that 
there  will  be  delay  because  of  their  absence.  It  seems  to  me  that 
the  business  now  is  in  a  condition  so  that  we  may  vote  upon  Mr. 
Brown's  amendment. 

Mr.  Cornwell  —  Mr.  Chairman,  I  believe  it  to  be  my  duty,  as 
representing  in  part  the  Seventh  Judicial  District  of  the  State,  to  raise 
my  voice  against  an  increase  of  the  justices  of  the  Supreme  Court,  as 
proposed  by  this  report.  I,  sir,  do  not  understand  that  there  is  any 
demand  for  this  measure,  so  far  as  the  interests  of  the  State  are 
concerned.  It  looks  to  me  like  special  legislation  in  the  interests 
of  a  class.  Believing  this,  I  consider  it  my  duty  to  oppose  this  part 
of  the  proposition  with  what  little  power  I  may  possess,  and  that  is, 
to  vote  against  its  adoption. 

It  will  not  be  denied  that  the  tendency  of  legislation  has  for  many 
years  been  to  increase  and  enlarge  the  demands  upon  the  revenues 
of  the  State,  not  alone  in  the  creation  of  new  offices  and  commis- 
sions, but  in  every  department  of  the  public  service,  without  a  care- 
ful and  proper  regard  in  all  cases  for  the  interests  of  the  people. 
The  deluge  of  this  large  increase  of  justices  of  the  Supreme  Court, 
with  all  the  expense  incident  to  this  great  office,  is  certainly  a  propo- 
sition that  should  be  entered  upon  with  great  care  and  wise  con- 
sideration of  the  demands  of  the  general  public.  The  putting  the 
machinery  into  operation  is  a  very  simple  matter,  considered  in 
itself,  but  when  we  contemplate  the  consequences  of  this  large 
increase  in  the  way  of  expense  necessary  to  its  support,  and  the 
severe  drain  upon  the  resources  of  the  already  overburdened  tax- 
payers of  the  State  at  large,  it  seems  to  me  we  can  well  afford  to 
pause  and  consider  the  public  interests  in  this  direction.  I  believe 
it  -is  safe  to  say  that  the  present  force  of  justices  of  the  Supreme 
Court  is  ample,  and  that  there  is  very  little,  if  any,  demand  for  its 
increase. 

I  desire  it  understood  that  I  speak  only  from  my  information  and 


920  REVISED  RECORD.  [Monday, 

knowledge  of  the  region  of  the  State,  middle  New  York,  in  which  I 
reside,  and  not  as  to  the  needs  of  the  great  centres  of  the  State,  as 
1  have  little  or  no  knowledge  of  their  needs  and  the  desires  of  those 
localities.  I  believe  I  am  also  safe  in  saying  that  the  justices  of  the 
Supreme  Court  are  not  an  overworked  body.  They  have,  as  a 
matter  of  fact,  their  holidays  and  vacations,  all  they  desire  or  need. 
Is  it  not  also  a  matter  of  fact  that  there  is  no  class  of  citizens  holding 
office  within  the  bounds  of  the  State  so  independent  of  the  people, 
and  it  might  with  propriety  be  said  a  law  unto  themselves,  as  are  the 
justices  of  the  Supreme  Court  of  the  State  of  New  York? 

Gentlemen  of  the  Convention,  unless  it  can  be  shown  beyond  the 
possibility  of  a  doubt,  not  only  that  the  public  necessity  and  demand 
for  this  additional  burden  upon  the  State  (there  being  none  greater 
than  the  courts),  carrying  with  it,  as  it  of  necessity  does,  the  equip- 
ment and  paraphernalia  incident  thereto,  is  in  the  interest  of  the 
masses,  then  we  should  not  for  a  moment  consent  to  its  adoption. 
To  my  mind  the  weal  of  the  public  generally  should  be  paramount 
in  this  Convention  of  the  people,  and  not  the  convenience,  or  desires, 
or  the  pleasure  of  a  class  of  our  fellow-citizens. 

Mr.  Veeder  —  Mr.  Chairman,  I  want  to  call  for  a  division  of  the 
question  on  the  motion  to  strike  out  and  to  substitute.  On  the 
question  of  creation  I  am  not  very  well  informed,  and  I  should  like 
to  hear  that  discussed  by  itself. 

Mr.  Dean  —  Mr.  Chairman,  I  rise  to  a  point  of  order,  that  a 
motion  to  strike  out  and  insert  is  not  divisible. 

The  Chairman  —  The  point  of  order  is  well  taken. 

Mr.  Cochran  —  Mr.  Chairman,  may  I  ask  for  information  from 
the  chairman  of  the  Judiciary  Committee  or  some  member  of  the 
•committee,  if  the  number  of  judges  is  changed  from  what  is  pro- 
posed in  this  amendment,  would  not  the  entire  scheme  as  presented 
by  the  judiciary  article  be  upset?  I  think  if  the  Judiciary  Com- 
mittee could  enlighten  us  upon  that  subject  it  might  aid  us  very 
much. 

Mr.  Nicoll — Seven  of  these  judges  are  needed  in  the  work  of  the 
Appellate  Division,  so  that  the  only  increase  generally  for  the 
Special  Term  and  Circuit  work  through  the  State  is  five  judges.  We 
have  now  five  General  Terms  with  three  judges  each,  making  fifteen 
appellate  judges. 

Mr.  Cochran  —  So,  that  if  we  should  abolish  the  twelve  judges, 
or  rather,  if  we  should  not  provide  for  them,  then  this  proposed 
amendment  would  have  to  be  returned  to  the  Judiciary  Committee 
to  devise  some  new  scheme.  Is  that  correct? 


August  20.]  CONSTITUTIONAL  CONVENTION.  921 

Mr.  Nicoll  —  Certainly  it  would. 

Mr.  E.  R.  Brown  —  Mr.  Chairman,  in  regard  to  the  remarks  that 
I  made  just  before  recess,  the  matter  came  up  so  suddenly,  and  I 
had  not  carefully  reflected  upon  the  subject,  but  upon  further  con- 
sideration, I  discover  that  there  can  be  no  division  of  the  State  on 
the  lines  laid  down,  probably,  which  would  not  include  the  Sixth, 
Seventh  and  Eighth  Judicial  Districts  in  a  single  district.  The 
Seventh  and  Eighth  Judicial  Districts  now  have  four  judges  on  the 
General  Term.  The  Sixth  Judicial  District,  which  would  then  be 
added  to  that  department,  now  has  a  judge  upon  the  General  Term. 
So  that  the  new  department  would  have  five  judges  already  in  ser- 
vice, at  General  Term,  available  for  that  court.  It  is  also  suggested 
to  me  that  Judge  Follett,  of  the  Sixth  Judicial  District,  is  at  service 
in  General  Term  in  New  York,  so  that  that  district  would  have  six 
justices  of  the  Supreme  Court  already  serving  in  General  Term. 
The  next  district  which  would  be  most  likely  to  be  formed,  would 
be  of  the  fifth,  fourth  and  third.  The  Fifth  Judicial  District  now 
has  two  judges  sitting  in  General  Term.  The  Fourth  Judicial  Dis- 
trict has  two  judges  in  General  Term,  and  the  Third  Judicial  District 
has  three  judges  in  General  Term.  So  that  we  have  thirteen  judges 
now  serving  in  General  Term  in  what  will  be  the  two  districts;  and 
not  only  would  there  be  judges  enough  to  equip  the  new  General 
Term  but,  according  to  these  figures,  there  would  be  three  judges  to 
withdraw  from  service  in  General  Term,  and  put  at  Circuit  work,  or 
lend  to  the  more  crowded  districts  about  New  York. 

What  I  said  in  relation  to  the  subject  of  expediency  seems  to  have 
been  misinterpreted  by  some  of  the  members  with  whom  I  have 
talked.  I  put  it  upon  the  ground  of  expediency  out  of  courtesy  to 
those  gentlemen,  and  especially  to  the  gentlemen  of  the  committee, 
who  thought  these  additional  judges  were  necessary  to  the  State. 
There  is  certainly  room  for  a  fair  difference  of  opinion  upon  this 
subject,  and  I  would  not  press  my  objection,  believing  that  there  are 
judges  enough  now,  in  opposition  to  their  views,  to  the  point  of 
excluding  the  creation  of  new  judges  by  the  Legislature.  I  do  not 
think  that  the  question  of  expediency  ought  always  to  be  followed 
by  us  here,  but,  if  it  rises  to  such  dignity  and  importance  that  it 
may  lead  to  the  rejection  of  our  work,  we  might  better  establish 
this  much  improved  system  of  judicial  procedure  shorthanded  for 
judges,  and  rely  upon  the  future  to  properly  equip  our  courts. 

Mr.  Crosby  —  Mr.  Chairman,  I  shall  not  support  the  amendment 
of  the  gentleman  from  Jefferson,  although  I  concur  with  his  reason- 
ing and  the  principle  that  he  seeks  to  sustain,  namely,  to  have  addi- 
tional judges  provided  as  the  emergency  may  appear.  The  office 


922  REVISED  RECORD.  [Monday, 

of  justice  of  the  Supreme  Court  of  the  State  of  New  York  is  so 
dignified,  and  so  responsible,  clothed  with  so  much  authority,  that, 
in  my  judgment,  it  would  be  a  dangerous  expedient  to  adopt,  to 
leave  it  to  the  Legislature  without  a  vote  of  the  people,  as  he  pro- 
poses. As  I  understand  the  amendment,  it  would  give  a  political 
Legislature,  swayed  by  all  the  influences  that  surround  that  body, 
the  power,  without  any  vote  of  the  people,  to  create  any  number  of 
judges  it  might  see  fit  at  any  session,  up  to  the  limit.  I  hardly 
think,  upon  reflection,  that  the  gentleman  who  proposed  the  amend- 
ment would  wish  to  change  the  rule  that  has  prevailed  for  many 
years  in  this  State.  I  shall  not  support  the  amendment  for  that 
reason. 

The  Chairman  put  the  question  on  the  adoption  of  Mr.  Brown's 
amendment,  and  it  was  determined  in  the  negative. 

Mr.  Forbes  —  Mr.  Chairman,  my  proposition  at  the  last  session 
was  that  amendments  should  be  received  at  the  end  of  the  reading 
of  this  proposed  amendment  as  a  whole.  I  have  an  amendment 
which  applies  to  this  section,  and  also  to  section  5,  but  I  would 
rather  have  the  amendment  come  in  at  the  proper  place  in  section  5, 
than  at  this  time.  I  desire  that  the  matter  should  not  be  over- 
looked. 

The  Chairman  —  How  would  the  gentleman  get  in  his  amend- 
ment to  section  i  ? 

Mr.  Forbes  —  By  the  ruling  of  the  Chair,  that  we  should  have 
that  privilege. 

The  Chairman  —  The  gentleman  must  take  his  chances. 

Mr.  Smith  —  Mr.  Chairman,  I  have  an  amendment  to  propose,, 
and  to  make  it  plain,  I  will  strike  out  and  insert ;  on  pages  I  and  2, 
strike  out  all  of  line  12,  on  page  I,  after  the  word  "terms,"  and  also- 
lines  i,  2  and  3,  down  to  and  including  the  word  "  districts,"  on  page 
2,  and  insert  in  place  thereof  the  following:  "and  of  sixteen  addi- 
tional justices,  who  shall  reside  in,  and  be  chosen  by  the  electors  of, 
the  several  existing  judiciary  districts;  five  in  the  first  district,  three 
in  the  second,  two  in  the  third,  and  one  in  each  of  the  other 
districts." 

The  Chairman  put  the  question  on  the  adoption  of  Mr.  Smith's 
amendment,  and  it  was  determined  in  the  negative. 

The  Chairman  —  Are  there  any  other  amendments  to  the  first 
section  of  the  report?  The  Chair  hears  none,  and  the  Secretary  will 
read  the  second  section. 


August  20.]  CONSTITUTIONAL  CONVENTION.  923 

The  Secretary  read  section  2  as  follows : 

Sec.  2.  The  Legislature  shall  divide  the  State  into  four  judicial 
departments.  The  first  department  shall  consist  of  the  county  of 
New  York;  the  others  shall  be  bounded  by  county  lines,  and  be 
compact  and  equal  in  population  as  nearly  as  may  be.  Once  every 
ten  years  the  Legislature  may  alter  the  judicial  departments,  but 
without  increasing  the  number  thereof. 

There  shall  be  an  Appellate  Division  of  the  Supreme  Court  con- 
sisting of  seven  justices  in  the  first  department,  and  of  five  justices 
in  each  of  the  other  departments.  In  each  department  four  shall 
constitute  a  quorum,  and  the  concurrence  of  three  shall  be  necessary 
to  a  decision.  No  more  than  five  justices  shall  sit  in  any  case. 

From  all  the  justices  elected  to  the  Supreme  Court  the  Governor 
shall  designate  those  who  shall  constitute  the  Appellate  Division 
in  each  department;  and  he  shall  designate  the  presiding  justice 
thereof,  who  shall  act  as  such  during  his  term  of  office,  and  shall  be 
a  resident  of  the  department.  The  other  justices  shall  be  desig- 
nated for  terms  of  five  years,  or  the  unexpired  portions  of  their 
respective  terms  of  office,  if  less  than  five  years.  From  time  to 
time,  as  the  terms  of  such  designations  expire,  or  vacancies  occur, 
he  shall  make  new  designations.  He  may  also  make  temporary 
designations  from  time  to  time  in  case  of  the  absence  or  inability  to 
act  of  any  justice  in  the  Appellate  Division.  A  majority  of  the 
justices  designated  to  sit  in  the  Appellate  Division  in  each  depart- 
ment shall  be  residents  of  the  department.  Whenever  the  Appellate 
Division  in  any  department  shall  be  unable  to  dispose  of  its  business 
within  a  reasonable  time,  a  majority  of  the  presiding  justices  of  the 
several  departments,  at  a  meeting  called  by  the  presiding  justice  of 
the  department  in  arrears,  may  transfer  any  pending  appeals  from 
such  department  to  any  other  department  for  hearing  and  determina- 
tion. No  justice  of  the  Appellate  Division  shall  exercise  any  of  the 
powers  of  a  justice  of  the  Supreme  Court  other  than  those  of  a 
justice  out  of  court  and  those  pertaining  to  the  Appellate  Division 
or  to  the  hearing  and  decision  of  motions  submitted  by  consent  of 
counsel.  From  and  after  the  last  day  of  December,  1895,  the 
Appellate  Division  shall  have  the  jurisdiction  now  exercised  by  the 
Supreme  Court  at  its  General  Terms,  and  by  the  General  Terms  of 
the  Court  of  Common  Pleas  for  the  city  and  county  of  New  York, 
the  Superior  Court  of  the  city  of  New  York,  the  Superior  Court  of 
Buffalo  and  the  City  Court  of  Brooklyn,  and  such  additional  juris- 
diction as  may  be  conferred  by  the  Legislature.  It  shall  have  power 
to  appoint  and  remove  a  reporter. 

The  justices  of  the  Appellate  Division  in  each  department  shall 


924  REVISED  RECORD.  [Monday, 

have  power  to  fix  the  times  and  places  for  holding  Special  and  Trial 
Terms  therein,  and  to  assign  the  justices  in  the  departments  to  hold 
such  terms;  or  to  make  rules  therefor. 

Mr.  Platzek  —  Mr.  Chairman,  I  desire  to  offer  an  amendment. 
The  Secretary  read  the  amendment  of  Mr.  Platzek  as  follows: 

"  To  amend  section  2  by  striking  out,  after  the  word  'justices '  in 
line  22,  on  page  2,  the  words  '  elected  to,'  and  insert  in  place  thereof 
the  word 'of.'" 

Mr.  Platzek — Mr.  Chairman,  the  purpose  of  this  amendment 
is  very  evident.  I  desire  to  avoid  any  possible  discrimination 
between  judges  of  the  Supreme  Court.  If  the  Court  of  Common 
Pleas  and  the  Superior  Court  of  the  city  of  New  York  are  to  be  con- 
solidated with  the  Supreme  Court,  and  the  City  Court  of  Brooklyn 
is  to  be  consolidated  with  the  Supreme  Court,  and  the  Superior 
Court  of  Buffalo  is  to  be  consolidated  with  the  Supreme  Court,  and 
the  business  of  those  courts  is  to  be  transferred  to  the  Supreme 
Court,  and  the  justices  of  these  several  courts  are  to  be  made 
judges  of  the  Supreme  Court,  they  ought  not  to  be  a  tender  to  the 
Supreme  Court,  but  ought  to  stand  upon  an  equal  footing,  with 
equal  rights  and  equal  dignity.  It  appears  to  me  that  there  are 
some  men  to-day  who  occupy  positions  upon  the  bench  in  several 
courts  who  would  resent  it  as  an  indignity.  It  cannot  be  argued 
that  the  proposition  to  take  away  from  the  Governor  the  right  to 
assign  either  of  the  judges  of  these  respective  courts  to  an  appellate 
court  is  directed  against  the  individual.  If  so,  they  are  unfit  to  sit 
upon  the  bench  in  either  court.  If  it  is  right  that  these  courts  shall 
be  merged  and  these  judges  now  occupying  honorable  positions  and 
discharging  their  duties  faithfully  and  ably  are  to  become  judges  of 
the  Supreme  Court,  it  is  unjust  that  there  should  be  any  discrimina- 
tion whatever.  Either  these  men  have  a  right  to  be  Supreme  Court 
judges,  with  all  the  powers  that  that  implies,  or  the  courts  should  not 
be  consolidated.  So  far  as  the  gentlemen  occupying  those  positions 
in  the  city  of  New  York  are  concerned,  they  have  had  long  experi- 
ence, and  their  work  upon  the  bench  and  their  written  adjudica- 
tions show  them  to  be  capable  of  sitting  upon  the  Supreme  Court 
bench.  Whether  the  Governor  will  at  any  time  assign  these  judges 
to  do  appellate  work  is  a  matter  for  the  hereafter;  but  as  a  practicing 
member  of  the  New  York  bar,  knowing  the  work  and  appreciating 
the  ability  of  these  judges  and  of  the  judges  who  sit  in  the  City 
Court  of  Brooklyn,  I,  for  one.  cannot  stand  here  without  protesting 
against  an  attack  upon  what  I  call  their  judicial  ability,  and  I  insist 
that  it  would  be  unfair  and  unjust  to  make  them  Supreme  Court 


August  20.]  CONSTITUTIONAL  CONVENTION.  925 

judges  without  conferring  upon  them  all  the  powers  of  that  office. 
We  all  remember  only  a  short  time  ago  when  we  had  two  divisions 
of  the  Court  of  Appeals  in  this  State.  So  far  as  I  am  concerned,  I 
read  the  opinions  written  by  the  judges  of  the  second  division  with 
as  much  respect  and  I  obtained  as  much  learning  and  as  much  law 
from  those  decisions  as  those  written  by  the  judges  of  the  Court  of 
Appeals,  more  properly  called  the  first  division.  Yet  there  are 
lawyers,  not  a  dozen,  but  there  are  hundreds,  who  did  not  have  the 
same  respect  for  the  decisions  of  the  judges  of  the  second  division  as 
for  the  judges  of  the  Court  of  Appeals.  And  time  and  again  we 
have  heard  it  stated,  in  the  court  houses  and  in  lawyers  offices,  when 
they  came  back  from  the  Court  of  Appeals :  "  Had  we  been  before 
the  Court  of  Appeals,  and  not  before  the  second  division,  our  cases 
would  probably  have  been  differently  decided." 

Now,  I  say  we  cannot  afford  to  raise  any  such  distinctions.  I  say 
the  time  might  come  when  some  lawyer  would  try  a  cause  before 
one  of  these  judges,  against  whom  this  discrimination  is  proposed  to 
be  made,  and,  being  defeated  in  his  cause,  might  say:  "  Had  I  been 
before  a  full-fledged  Supreme  Court  judge,  my  cause  might  have 
been  differently  determined." 

I  am  here  to  maintain  the  dignity  of  the  bench,  and  I  am  here 
to  protest  against  it  being  assailed.  I  am  all  the  more  inclined  to 
assume  and  argue  that  proposition  because  of  what  I  know,  as  a  man 
and  as  a  practicing  lawyer  since  1876  at  the  New  York  bar,  of  the 
men  and  the  ability  of  the  men  who  have  sat  upon  the  bench  in  the 
Court  of  Common  Pleas  and  in  the  Superior  Court. 

Because  of  these  reasons,  M.  Chairman,  I  insist  that  it  is  only 
proper  and  only  fair  and  only  just  that  the  amendment  should 
prevail. 

Mr.  Root —  Mr.  Chairman,  the  precise  words  used  in  this  part  of 
this  section  are  the  result  of  very  numerous  and  very  patient  con- 
sultations with  the  judges  and  justices  of  these  courts  in  the  city  of 
New  York.  They  are  the  outcome  of  a  score  of  different  plans,  and 
they  come  nearer,  I  think,  to  satisfying  the  wishes  and  the  best 
judgment  both  of  the  judges  of  those  courts  in  the  city  of  New 
York,  and  of  the  members  of  the  bar  of  that  city,  than  any  other 
possible  expedient.  I  believe  the  provision  is  not  only  expedient  for 
that  reason  but  is  in  accordance  with  substantial  justice,  and  con- 
duces to  the  best  administration  of  affairs.  It  would  be  going  a 
great  way  to  put  the  judges  of  the  Superior  Court  and  the  Court  of 
Common  Pleas  and  of  the  City  Court  of  Brooklyn  and  the  Superior 
Court  of  Buffalo  into  the  Appellate  Division,  to  review  the  decisions 
of  the  justices  of  the  Supreme  Court;  and  so  long  as  this  provision 


926  REVISED  RECORD.  [Monday, 

is  substantially  satisfactory  to  the  judges  who  are  concerned,  and 
substantially  satisfactory  to  the  great  body  of  the  bar  of  those  cities 
who  have  expressed  themselves  upon  the  subject,  I  hope  the  Con- 
vention will  not  disturb  it.  Any  disturbance  of  it  would  reduce  our 
whole  consolidation  of  the  courts  into  confusion  worse  confounded. 
Mr.  O.  A.  Fuller  —  Mr.  Chairman,  I  would  like  to  make  an 
inquiry,  so  that  I  may  know  where  we  stand.  We  do  all  our 
Special  Term  work  in  Buffalo.  Now,  if  you  take  the  justices  of  the 
Superior  Court  of  Buffalo  and  make  Supreme  Court  judges  of  them, 
we  will  find  them  holding  Special  Terms  in  Erie  county,  where  we 
do  our  Special  Term  work.  If  we  desire  to  make  a  motion  in  the 
Erie  County  Special  Term  and  we  find  one  of  those  judges  holding 
that  Special  Term,  can  we  who  live  in  outside  counties  make  the 
motion  before  him? 

Mr.  Root  —  Mr.  Chairman,  I  will  answer  the  gentleman's  ques- 
tion in  the  affirmative.  Those  judges  can  perform  any  judicial 
duties,  sitting  in  Erie  county. 

The  Chairman  put  the  question  on  the  motion  of  Mr.  Platzek,  and 
it  was  determined  in  the  negative. 

Mr.  Dickey  —  Mr.  Chairman,  I  move  to  amend  on  page  3,  line  19, 
by  striking  out  the  word  "counsel"  and  inserting  the  word 
"parties."  I  do  this,  Mr.  Chairman,  for  the  reason  that  it  might 
happen  that  parties  would  not  be  represented  by  counsel  in  the  case 
therein  provided.  They  should  have  a  right  to  appear  in  person  and 
not  necessarily  by  counsel. 

The  Chairman  put  the  question  on  the  adoption  of  Mr.  Dickey's 
amendment,  and  it  was  determined  in  the  negative. 

Mr.  Vedder  —  Mr.  Chairman,  I  wish  to  ask  a  question  of  the 
chairman  of  the  Judiciary  Committee.  In  section  2,  line  16,  it  is 
provided  that  "  there  shall  be  an  Appellate  Division  of  the  Supreme 
Court,  consisting  of  seven  judges  in  the  First  Department  and  of 
five  justices  in  each  of  the  other  departments.  In  each  department 
four  shall  constitute  a  quorum,  and  the  concurrence  of  three  shall  be 
necessary  to  a  decision."  Would  it  not  be  "better,  so  far  as  that 
First  Department  is  concerned,  to  have  a  majority  of  all  the  jus- 
tices who  sit  there  necessary  to  a  decision?  Now  it  is  only  three. 

Mr.  Root — Mr.  Chairman,  before  answering  the  question,  may 
I  call  attention  to  the  next  sentence,  "  No  more  than  five  justices 
shall  sit  in  any  case."  The  idea  is,  that  the  court  sitting  in  the 
First  Department  shall  be  just  the  same  kind  of  a  court,  with  just 
the  same  number  of  justices  as  the  courts  in  each  other  department. 


August  20.]  CONSTITUTIONAL  CONVENTION.  927 

But  in  the  First  Department,  the  court  is  obliged  to  sit  continuously 
from  the  first  of  October  until  the  end  of  June,  for  nine  solid  months, 
and  it  is  not  within  human  power  to  do  effective  judicial  work  sitting 
all -that  time.  The  object  of  the  addition  of  two  justices  is  that  they 
may  serve  in  relays,  relieving  each  other,  and  having  all  the  time  a 
court  of  the  same  size,  an  expedient  which  we  thought  unobjection- 
able in  a  court,  the  prime  object  of  which  was  to  pass  upon  the  par- 
ticular rights  of  litigants,  although  very  objectionable  in  a  court 
Avhich  was  designed  to  maintain  a  harmonious  and  consistent 
system  of  law. 

Mr.  Spencer  —  Mr.  Chairman,  I  wish  simply  to  make  an  inquiry 
in  regard  to  the  appointment  and  removal  of  a  reporter,  provided  for 
on  page  4,  line  2.  The  words  in  that  regard  are  as  follows :  "  It 
shall  have  power  to  appoint  and  remove  a  reporter."  Now,  the 
word  "it"  no  doubt  has  reference  to  the  Appellate  Division.  In 
the  sentence  which  precedes  that  it  speaks  of  the  Appellate  Division 
as  one  entire  court,  or  a  court  comprised  of  all  the  judges  of  the 
Appellate  Division,  it  would  seem,  for  it  confers  jurisdiction  upon 
the  Appellate  Division  of  all  of  the  courts,  in  Buffalo,  in  New  York 
and  Brooklyn  that  are  done  away  with.  But  in  other  parts  of  the 
section,  to  wit,  on  lines  23  and  24  of  page  2,  the  inference  from  the 
language  there,  it  seems  to  me,  would  be  that  there  should  be  an 
Appellate  Division  in  each  department;  and  my  inquiry  is,  whether 
the  committee  intend  to  have  a  reporter  for  each  department  or 
whether  there  is  to  be  a  reporter  for  all  the  departments,  and  whether 
that  is  clearly  understood.  It  is  not  clear  to  my  mind. 

Mr.  Root  —  Mr.  Chairman,  the  design  of  the  committee  was  to 
provide  for  one  Appellate  Division,  and  to  provide  that  that  Appel- 
late Division  should  sit,  with  not  more  than  five  justices  in  any  one 
case,  in  each  of  the  four  departments;  so  that  it  is  the  Appellate 
Division  sitting  in  the  First  Department,  the  Appellate  Divi- 
sion of  the  Supreme  Court  sitting  in  the  second,  in  the  third 
and  in  the  fourth.  The  whole  Appellate  Division  appoints  the 
reporter.  That  is  a  substitute  for  the  provision  now  to  be  found 
in  the  existing  Constitution,  in  section  23  of  the  judiciary  article, 
which  prescribes  that  the  Legislature  shall  provide  for  the  appoint- 
ment, by  the  justices  of  the  Supreme  Court  designated  to  hold 
General  Terms,  of  a  reporter  of  the  decisions  of  that  court.  The 
main  provision  establishing  this  Appellate  Division  is  on  page  2, 
and  is  in  these  words:  "  There  shall  be  an  Appellate  Division  of  the 
Supreme  Court  consisting  of  seven  justices  in  the  First  Department, 
and  of  five  justices  in  each  of  the  other  departments."  And  then 
follows  the  provision :  "  In  each  department,  four  shall  constitute 


928  REVISED  RECORD.  [Monday, 

a  quorum,  and  the  concurrence  of  three  shall  be  necessary  to  a 
decision."  This  follows  the  analogy  of  the  Court  of  Kings  Bench, 
in  England,  and  the  High  Court  of  Judicature,  in  England,  which  is 
a  single  court,  although  it  never  meets  and  never  comes  together 
into  one  body  for  any  purpose.  The  High  Court  of  Judicature  is 
sitting  at  the  trial  of  numerous  causes  throughout  the  United  King- 
dom. The  High  Court  of  Judicature  is  sitting  in  its  Appellate 
Divisions  and  in  its  divisional  courts  at  the  same  time.  And  it  is 
also  in  strict  analogy  to  the  Supreme  Court  of  this  State.  It  is 
the  Supreme  Court  which  sits  at  the  same  time,  presiding  in  the  per- 
sons of  its  several  judges,  in  the  Special  Terms  and  the  Circuits  all 
over  the  State.  In  each  room,  under  the  presidency  of  the  single 
judge,  is  the  Supreme  Court  of  the  State.  It  is  one  Supreme  Court, 
although  sitting  in  many  parts;  and  it  is  the  Supreme  Court  at  the 
same  time  which  is  sitting  in  each  of  its  departments.  So,  it  will  be 
the  Supreme  Court  sitting  in  all  its  trial  and  Special  Terms,  and 
the  Supreme  Court  sitting  in  the  Appellate  Division,  and  the  Appel- 
late Division  of  the  Supreme  Court  sitting  in  the  several  depart- 
ments. It  is  the  whole  Appellate  Division  which  will  appoint  the 
reporter,  and  where  any  power  is  confined  within  a  particular  depart- 
ment, we  specify  the  division  in  that  department  as  exercising  the 
power. 

Mr.  E.  R.  Brown  —  Mr.  Chairman,  I  would  like  to  inquire  of  the 
chairman  of  the  Judiciary  Committee  if  it  was  his  intention  that  the 
apportionment  of  the  judicial  districts  should  be  based  on  the  enu- 
meration of  the  inhabitants  of  the  State  once  in  ten  years.  In  line 
14,  on  page  2,  it  says :  "  Once  every  ten  years  the  Legislature  may 
alter  the  judicial  departments,  but  without  increasing  the  number 
thereof."  Was  it  the  intention  to  base  it  upon  the  enumeration  of 
the  inhabitants  of  the  State? 

Mr.  Root  —  Mr.  Chairman,  I  will  answer  that  question  by  saying 
not  necessarily.  The  act  requires  the  Legislature  now  to  divide 
the  State  into  four  departments.  We  had  not  the  time  nor  the 
information,  nor  the  opportunity  to  get  the  information,  to  con- 
stitute those  departments.  It  would  require  consulting  the  con- 
venience and  wishes  of  a  great  number  of  the  people  of  the  State. 
We  conceived  that  the  Legislature  would  be  able  to  do  that.  They 
are  required  now,  and  it  will  be  their  duty  at  their  first  session,  after 
the  adoption  of  this  article,  if  it  be  adopted,  to  divide  the  State  into 
four  judicial  departments.  That  is  the  starting  point.  Then,  once 
in  every  ten  years,  they  may  rearrange  the  departments. 

Mr.  Cornwell  —  Mr.  Chairman,  by  request  of  one  of  the  justices 
of  the  Supreme  Court  of  the  Seventh  Judicial  District,  I  wish  to 


August  20.]  CONSTITUTIONAL  CONVENTION.  929 

offer  an  amendment.  Section  2,  on  page  4,  reads  as  follows :  "  The 
justices  of  the  Appellate  Division  in  each  department  shall  have 
power  to  fix  the  times  and  places  for  holding  Special  and  Trial 
Terms  therein,  and  to  assign  the  justices  in  the  departments  to  hold 
such  terms,"  and  so  forth.  I  wish  to  amend  by  striking  out  the 
words  "Appellate  Division,"  and  insert  therein  the  words  "justices 
of  the  Supreme  Court,"  so  that  it  shall  read  "  the  justices  of  the 
Supreme  Court,"  and  so  forth.  This  is  in  deference  to  the  wishes 
and  desires  of  a  Supreme  Court  judge  of  the  Seventh  Judicial  Dis- 
trict, who  claims  that  the  justices  of  the  Supreme  Court  have  here- 
tofore made  their  own  appointments  of  terms  of  courts,  and  they 
desire  to  do  it  hereafter. 

Mr.  Hottenroth  —  Mr.  Chairman,  will  the  chairman  of  the  Judi- 
ciary Committee  permit  me  to  ask  a  question?  I  note  in  section  2, 
line  10,  "  the  Legislature  shall  divide  the  State  into  four  judicial 
departments."  Is  it  the  intention  of  the  committee  to  have  that 
division  made  at  once?  It  appears  to  me  that  if  that  is  the  inten- 
tion, it  would  be  advisable  to  so  provide  in  the  amendment,  so  as 
to  avoid  possible  confusion. 

Mr.  Root  —  Mr.  Chairman,  the  article  provides  that  the  Appellate 
Division,  and  the  courts  composed  of  justices  of  the  Appellate  Divi- 
sion in  the  four  departments,  shall  be  organized  at  such  a  time  that 
it  will  be  necessary  for  the  Legislature  to  divide  the  State  into 
departments  at  their  next  session.  They  would  be  plainly  derelict 
in  their  duty  if  they  did  not  do  it  at  the  first  session  after  the  adop- 
tion of  the  article.  It  seemed,  therefore,  unnecessary  to  put  in  the 
•specific  provision. 

Mr.  Chairman,  I  hope  the  amendment  of  Mr.  Cornwell  will  not 
prevail.  It  would  introduce  very  great  confusion,  and  would  do 
away  with  one  thing  which  I  think  is  of  some  importance.  I  do 
not  wish  to  say  anything  against  any  justice  of  the  Supreme  Court, 
but  they  are  the  only  body  of  public  officers  that  I  know  of  any- 
where who  have  the  absolute  power  to  determine  what  they  shall 
do,  when  and  where  they  shall  do  it,  and  whether  they 
shall  do  it  or  not.  I  do  not  believe  that  a  judicial  system 
is  perfect  unless  it  provides  in  some  way,  in  which  duties  may 
be  prescribed,  which  it.  shall  be  incumbent  upon  a  justice  of  the 
Supreme  Court  to  perform.  I  think  that  this  provision,  which 
merely  provides  that  the  Appellate  Division  in  the  department  shall 
determine  the  times  and  places  and  assign  justices  thereto,  or  make 
rules  therefor,  is  a  necessary  and  proper  provision.  They  probably 
59 


930  REVISED  RECORD.  [Monday, 

will  do,  as  the  General  Terms  have  done  hitherto,  exercise 
the  same  powers,  make  rules,  and  let  the  justices  arrange 
their  work  to  suit  themselves.  But  there  ought  to  be 
some  power,  which  the  citizen  can  hold  responsible  for  the  per- 
formance of  judicial  work,  and  some  place  to  which  the  citizen  can 
go  to  complain  if  it  is  not  performed,  with  judges  the  same  as  any 
one  else.  In  the  first  department,  if  this  provision  were  expunged, 
it  would  result  in  the  judges  of  the  Superior  Court  and  the  judges 
of  the  Court  of  Common  Pleas,  who  outnumber  the  judges  of  the 
Supreme  Court,  into  which  they  are  introduced,  assigning  the  jus- 
tices of  the  Supreme  Court  to  their  duties  and  controlling  their 
action  absolutely,  a  thing  which  I  think  neither  they  wish  to  arrogate 
to  themselves,  nor  to  which  the  justices  of  the  Supreme  Court  wish 
to  submit  themselves.  This  provision  was  introduced  into  the 
article,  after  a  great  deal  of  careful  consideration  and  discussion,  and 
it  would  be,  I  think,  exceedingly  unfortunate  if  it  were  out. 

Mr.  Holcomb  —  Mr.  Chairman,  could  we  have  the  proposition  of 
Mr.  Corn  well  read,  so  that  we  could  understand  it  here? 

The  Secretary  read  the  amendment  as  sent  up  by  Mr.  Cornwell,  in 
the  words  following: 

"  Section  2,  page  4,  line  3,  strike  out  the  words  'Appellate  Divi- 
sion '  and  insert  the  words  '  Supreme  Court.' " 

Mr.  Cornwell  —  I  do  not  rise  with  any  idea  of  making  any  impres- 
sion upon  this  body  with  reference  to  this  matter.  It  seems  to  me 
that  the  justices  of  the  Supreme  Court  should  have  the  arrangement 
of  the  terms  at  which  they  shall  hold  courts  as  the  justices  of  the 
Appellate  Division,  so  called.  The  justices  of  the  Appellate  Divi- 
sion are  selected,  as  I  understand,  from  the  justices  of  the  Supreme 
Court.  Now,  in  giving  them  the  power  to  prescribe  the  times  at 
which  the  justices  of  the  Supreme  Court  shall  hold  their  terms,  it 
places  them  over  and  above  that  body.  I  do  not  see  any  more  rea- 
son why  the  appellate  justices  should  appoint  the  terms  of  courts  of 
justices  of  a  Supreme  Court  than  that  the  justices  of  the  Supreme 
Court  should  appoint  the  terms  at  which  the  General  Terms  should 
hold  their  courts.  I  believe  the  justices  of  the  Supreme  Court  should 
be  granted  this  small  privilege,  to  designate  the  terms  of  their 
courts. 

Mr.  C.  B.  McLaughlin  —  Mr.  Chairman,  I  desire  to  say  just  a  word 
upon  this  proposed  amendment.  I  sincerely  hope  it  will  be  voted 
down.  I  consider  the  report  of  this  committee,  upon  this  branch  of 
this  article  as  one  of  the  wisest  provisions  contained  in  it.  There 
should  be  lodged  somewhere  the  power  which  will  assign  the  justices 


August  20.]  CONSTITUTIONAL  CONVENTION.  931 

of  the  Supreme  Court  and  distribute  the  work  which  they  are  to 
do  with  reference  to  the  work  of  the  district  in  which  they  are 
located.  In  the  judicial  district  in  which  I  live  we  have  during  two 
months  of  the  year  only  five  justices,  practically  no  Special  Term; 
at  least  none  which  we  can  reach  without  traveling  from  where  I 
live,  150  miles,  or  nearly  that.  Now,  if  this  power  is  lodged  as 
proposed  in  this  article  reported  by  the  committee,  the  General 
Terms  can  say  to  some  of  these  justices  when  they  shall  hold  terms, 
where  they  shall  hold  them;  and  it  seems  to  me  that  that  is  one  of 
the  wisest  provisions  contained  in  the  article. 

The  Chairman  then  put  the  question  on  the. amendment  offered 
by  Mr.  Cornwell,  and  it  was  determined  in  the  negative. 

Mr.  Peck  —  Mr.  Chairman,  for  the  purpose  of  developing  discus- 
sion, as  I  understand  is  the  wish  of  the  Judiciary  Committee,  I  move 
at  this  time  to  strike  out  the  whole  of  this  second  section.  The  great 
purpose  of  this  provision,  as  I  understand  it,  is  to  remedy  the  evils, 
or  what  are  the  inconveniences,  of  our  present  system  of  General 
Terms.  It  is  proposed  by  this  article  to  supplant  twenty-seven 
or  twenty-eight  judges  sitting  at  General  Term  in  review  of  nisi 
prius  courts,  by  twenty-two,  and  they  are  expected  to  do  the  work, 
more  effectually  and  more  perfectly  than  the  twenty-eight  or  nine. 
My  view  of  this  is  that  the  trouble  with  the  General  Term,  which 
has  arrested  the  attention  of  the  profession  and  of  the  people,  grows 
out  of  the  fact  that  the  judges  are  not  elected  for  that  duty,  that  they 
are  drawn  from  the  courts  for  which  they  are  elected  and  set  apart 
to  this  duty  at  General  Term.  This  proposed  amendment  does  not 
remedy  that  difficulty.  We  are  making  an  appellate  division  in  place 
of  the  General  Term,  the  whole  of  the  personnel  of  which  is  to  be 
drawn  from  the  justices  of  the  Supreme  Court  elected  in  districts 
for  district  work.  When  set  apart  in  that  way  there  is  no  lirriitation 
here  as  to  how  many  shall  be  taken  from  any  particular  district;  and 
we  will  find  some  districts  denuded,  as  the  third  district  is  at  this 
time,  of  its  judges  by  their  being  set  apart  for  appellate  division 
work.  At  the  proper  time,  I  propose  to  offer  an  amendment,  which 
in  effect  shall  require  that  this  Appellate  Division  of  the  Supreme 
Court  shall  be  composed  of  judges  who  shall  be  elected  in  the  sepa- 
rate departments  for  that  particular  work;  that  the  men  shall  be 
chosen  because  they  are,  in  the  judgment  of  the  people,  suited  to 
belong  to  courts  of  review;  and  I  am  not  at  all  sure,  Mr.  Chairman, 
that  when  we  are  making  a  new  court  of  last  resort  —  because  that 
is  what  this  is  in  many  respects  —  I  am  not  at  all  sure  that  the  judges 
of  it  should  not  be  elected  as  the  judges  of  our  present  court  of  last 
resort  are  elected,  by  the  whole  people  of  the  State.  By  this  method 


932  REVISED  RECORD.  [Monday, 

we  would  have,  it  seems  to  me,  organized  in  the  State  new  courts 
of  last  resort  if  we  need  them,  with  judges  selected  for  that  particu- 
lar duty,  and  not  made  up  by  the  Governors  elected  for  a  different 
purpose  and  with  different  views,  and  influenced  by  different  mo- 
tives, to  select  courts  for  the  whole  State.  It  seems  to  me  as  if, 
instead  of  reorganizing  out  first  Court  of  Appeals,  this  proposed 
article  is  affording  rather  simply  a  new  deal,  a  readjustment  of  the 
judges  that  are  to  be  the  General  Term  judges  or  the  Appellate 
Court  judges' — call  them  what  you  please.  It  is  substan- 
tially the  same  thing  that  we  have  now,  and  we  will  have 
the  same  difficulty;  we  will  have  the  same  dissatisfaction  with 
the  work.  Therefore,  having  said  what  I  have  simply  to  develop 
one  branch  that  will  probably  be  a  part  of  this  discussion,  as  was 
suggested  by  the  Judiciary  Committee,  I  withdraw  my  motion  to 
strike  out  the  second  section. 

Mr.  I.  S.  Johnson  —  Mr.  Chairman,  I  move  to  amend  section  2  by 
adding,  at  the  end  of  line  6,  page  4,  the  following:  "  At  least  one 
Special  Term  for  the  trial  of  equity  cases  shall  be  held  in  every 
county  of  this  State  each  year." 

It  is  a  fact  that  in  a  great  many  counties  of  the  State  we 
are  obliged  to  try  almost  all  of  our  equity  cases  before  referees 
at  an  immense  expense.  It  is  a  fact  that  while  these  judges 
are  willing  to  sit  in  some  of  the  cities  and  try  cases,  they  dislike  very 
much  to  come  out  into  the  country  and  try  cases,  and  hence  as  soon 
as  we  get  through  with  the  trial  of  jury  cases,  the  judge  suggests 
that  he  cannot  stop  any  longer  and  that  we  must  refer  our  cases, 
and  we  have  repeatedly  asked  them  to  hold  equity  terms,  at  least 
one  in  each  of  the  counties ;  but  we  find  it  difficult  to  get  them  to  do 
so.  I  think  if  we  are  to  reorganize  the  judiciary  article  we  should 
do  it  in  the  interests  of  the  people,  and  we  can  have  nothing  which 
will  be  more  in  the  interest  of  the  people  than  by  providing  that 
the  judges  shall  try  the  cases.  It  is  a  difficult  and  expensive  thing  in 
the  country  to  try  cases  before  referees.  Take  a  long  case,  which 
is  to  involve  a  long  account  and  take  two  or  three  days  to  try.  The 
judges  say  to  the  litigants,  "  You  must  refer  this  case."  It  may  in- 
volve $400  or  $500.  What  is  the  result  of  a  reference?  In  the  first 
place,  we  have  to  pay  the  referee  fifteen  to  twenty  dollars  a  day. 
We  then  have  to  pay  the  stenographer  ten  dollars  a  day  and  then 
pay  him  for  writing  out  his  minutes;  while  in  the  cities,  the  more 
fortunate  litigants  have  an  opportunity  to  have  the  officers  of  the 
courts  try  cases  and  have  an  official  stenographer  furnished  and  paid 
for  by  the  State  or  county.  I  submit,  Mr.  Chairman,  that  it  is 
proper  that  these  judges  should  go  into  each  county,  and  they  should 


August  20.]          CONSTITUTIONAL  CONVENTION.  933 

be  compelled  to  go  into  each  county  and  hold  at  least  one  Special 
Term  every  year. 

Mr.  Cassidy  —  May  I  ask  the  gentleman  a  question,  Mr.  Chair- 
man? How  would  he  arrange  in  Hamilton  county,  where  they  have 
no  court-house  and  hold  their  Supreme  Court  in  conjunction  with 
Fulton  county? 

Mr.  Johnson  —  I  would  have  no  objection  to  placing  Fulton  and 
Hamilton  in  the  same  arrangement  as  exists  with  respect  to 
Members  of  Assembly. 

Mr.  Cassidy  —  Then  your  amendment  would  not  be  proper,  would 
it? 

Mr.  Johnson  —  There  might  be  a  change,  perhaps,  in  this,  and  if 
the  gentleman  wishes  to  change  it  in  that  regard,  I  do  not  care;  but 
I  say  that  we  should  have  some  rights,  Mr.  Chairman,  enabling  the 
people  to  try  their  cases  in  the  courts  and  by  the  officers  of  the 
courts,  and  by  the  use  of  the  stenographers  paid  for  by  the  people, 
and  not  by  individual  litigants. 

Mr.  Foote  —  Mr.  Chairman,  I  would  suggest  to  the  gentleman 
from  Wyoming  that  the  clause  which  he  proposes  to  add  seems  to 
be  unnecessary  as  the  ground  seems  already  to  be  covered.  The 
section  provides  that  the  justices  of  the  Appellate  Division  shall  fix 
the  times  and  places  for  holding  Trial  and  Special  Terms,  and  desig- 
nate the  justices  to  hold  such  terms.  Now,  if  in  Wyoming  county, 
for  instance,  it  is  proper  that  at  least  one  term  for  the  trial  of  equity 
causes  should  be  held  each  year,  it  will  become  the  duty  of  the  jus- 
tices of  the  Appellate  Division  to  appoint  such  a  term  for  that  county 
and  to  assign  the  justice  to  hold  that  term;  and,  further,  I  may  say 
that  if  the  justice  appointed  to  hold  the  term  shall  be  anxious  to 
return  to  his  home,  I  do  not  think  any  constitutional  provision  will 
prevent  his  suggesting  to  counsel  that  the  case  is  a  proper  one  to 
be  tried  before,  a  referee,  and  ought  to  take  that  disposition. 

Mr.  Cady  —  Mr.  Chairman,  the  suggestion  made  by  Mr.  Foote 
covers  very  largely  the  point  that  I  was  about  to  bring  to  the  atten- 
tion of  the  Convention  when  he  was  recognized.  It  was  confiden- 
tially believed  by  the  Judiciary  Committee,  in  the  course  of  the  pre- 
paration of  this  article,  that  the  mass  of  minute  detail  should  be 
avoided  as  far  as  possible,  and  that  the  judiciary  article  should  be 
composed  as  largely  as  possible  of  declarations  of  the  organic  law, 
and  should  establish  a  framework  and  a  judicial  system  upon  which 
the  court,  by  its  rules,  and  the  Legislature,  by  its  statutes,  might 
build  up  a  system  of  jurisprudence.  This  is  largely  a  matter  of 
detail.  The  justices  of  the  Appellate  Division  in  any  department, 


934  REVISED  RECORD.  [Monday, 

as  it  seemed  to  us,  might  safely  be  trusted  to  provide  terms  of  court 
for  the  transaction  of  all  the  business  in  all  the  counties  and  all  the 
districts  composing  a  given  department;  and,  as  Mr.  Foote  has 
already  stated,  the  second  section,  at  lines  3,  4  and  5,  on  page  4, 
expressly  provides  that  the  justices  of  the  Appellate  Division  in 
each  department  shall  have  power  to  fix  the  times  and  places  for 
holding  the  Special  and  Trial  Terms  therein,  to  assign  the  justices 
to  hold  such  terms  and  to  make  the  rules  therefor. 

The  Chairman  put  the  question  on  the  adoption  of  the  amend- 
ment proposed  by  Mr.  Johnson,  and  it  was  determined  in  the 
negative. 

The  Chairman  —  Are  there  any  further  amendments  to  the  sec- 
ond section  of  this  proposition?  If  the  Chair  hears  none,  the 
secretary  will  read  the  third  section. 

The  Secretary  read  section  3  of  the  amendment  proposed  by  the 
committee  as  follows: 

§  3.  No  judge  or  justice  shall  sit  in  the  Appellate  Division  or  in 
the  Court  of  Appeals  in  review  of  a  decision  made  by  him  or  by  any 
court  of  which  he  was  at  the  time  a  sitting  member.  The  testimony 
in  equity  cases  shall  be  taken  in  like  manner  as  in  cases  at  law;  and, 
except  as  herein  otherwise  provided,  the  'Legislature  shall  have  the 
same  power  to  alter  and  regulate  the  jurisdiction  and  proceedings 
in  law  and  in  equity  that  it  has  heretofore  exercised. 

The  Chairman  —  Are  there  any  amendments  to  the  third  section 
of  this  proposition?  If  the  Chair  hears  none  the  Secretary  will  read 
the  fourth  section. 

The  Secretary  read  the  fourth  section  of  the  amendment  as 
follows : 

§  4.  The  official  terms  of  the  justices  of  the  Supreme  Court  shall 
be  fourteen  years  from  and  including  the  first  day  of. January  next 
after  their  election.  When  a  vacancy  shall  occur  otherwise  than 
by  expiration  of  term  in  the  office  of  justice  of  the  Supreme  Court 
the  same  shall  be  filled,  for  a  full  term,  at  the  next  general  election, 
happening  not  less  than  three  months  after  such  vacancy  occurs; 
and,  until  the  vacancy  shall  be  so  filled,  the  Governor  by  and  with 
the  advice  and  consent  of  the  Senate,  if  the  Senate  shall  be  in  session, 
or  if  not  in  session  the  Governor,  may  fill  such  vacancy  by  appoint- 
ment, which  shall  continue  until  and  including  the  last  day  of 
December  next  after  the  election  at  which  the  vacancy  shall  be 
filled. 

Mr.  Pratt  —  Mr.  Chairman,  I  move  to  amend  section  4  by  striking 


August  20.J  CONSTITUTIONAL  CONVENTION.  935 

out  the  word  '"  fourteen"  in  line  16,  and  inserting  in  place  thereof 
the  word  "  ten." 

Mr.  A.  H.  Green  —  Mr.  Chairman,  I  move  to  amend  that  amend- 
ment by  putting  in  the  word  "  eight "  instead  of  "  ten." 

Mr.  Baker  —  Mr.  Chairman,  years  ago,  when  I  practiced  law,  I 
made  up  my  mind  that  fourteen  years  was  too  long  for  any  man  to 
sit  as  a  circuit  judge.  There  is  a  natural  stupidity  that  grows  upon  a 
man  who  sits  upon  the  bench  for  so  long  a  time.  The  term  of  four- 
teen years  is  remarkable.  I  have  a  case  in  point,  and  perhaps  it  was 
the  last  case  that  I  attempted  to  try.  It  was  this:  a  very  clever 
gentleman  had  been  on  the  bench  some  twelve  years.  I  thought  I 
gave  him  the  proper  reference  to  the  law;  at  all  events,  I  thought 
1  spoke  the  law  to  the  court.  The  court  contradicted  me  and  I  asked 
the  court  to  adjourn  over  until  morning,  when  I  would  try  to  con- 
vince it.  In  the  morning  I  carried  in  a  decision  of  the  Court  of 
Appeals,  read  the  head  notes  to  him,  and  after  a  little  deliberation,  he 
inquired  of  me  if  the  case  bore  out  the  head  lines.  I  told  him  it 
did.  "Well,  sir,"  he  says,  "who  wrote  that  opinion?"  I  replied, 
"  Your  honor,  while  sitting  in  the  Court  of  Appeals,  and  all  the  rest 
of  the  judges  agreed  with  you."  Well,  I  made  up  my  mind  from 
that  little  circumstance  that  after  a  man  had  been  on  the  bench  for 
ten  or  twelve  years,  it  was  time  he  got  off  and  let  some  other  fellow 
on.  Now,  it  is  my  observation,  Mr.  Chairman,  that  our  judges  are 
kept  upon  the  bench  too  long.  I  believe  when  a  man  had  served 
ten  years  he  is  past  the  day  of  his  usefulness  as  a  circuit  judge.  He 
gets  careless.  There  are  exceptions.  He  becomes  somewhat  indif- 
ferent to  the  duties  devolving  upon  him  and  he  should  either  be 
transferred  to  a  higher  tribunal  or  else  he  should  give  way  for  some 
other  gentleman;  and  there  are  enough  men,  younger  than  I  am  a 
good  deal,  ambitious  of  being  called  "judge."  Why,  Mr.  Chairman, 
ten  years'  duration  of  the  term  of  a  judge  of  the  Supreme  Court  is 
glory  enough  for  anybody.  He  ought  then  to  retire  and  without 
pension,  too.  Now,  I  think  I  have  said  about  all  I  ought  to  say,  and 
I  believe  that  this  amendment,  which  I  meant  to  have  made,  ought 
to  pass. 

Mr.  Woodward  —  Mr.  Chairman,  I  think  that  eight  years  is  long 
enough.  If  a  man  who  has  been  on  the  bench  for  eight  years  proves 
to  be  a  good  judge,  he  will  stand  a  chance  to  be  re-elected,  and  if  he 
is  not  a  man  of  ability,  a  man  that  ought  to  sit  there,  eight  years  is 
long  enough  for  him  to  remain  there.  When  he  has  been  on  the 
bench  eight  years  he  has  been  there  long  enough,  if  he  is  not  a  fit 
judge,  and  if  he  is  a  fit  judge  and  goes  off  the  bench,  he  is  very  likely 


936  REVISED  RECORD.  [Monday, 

to  be  re-elected,  and  then  he  may  sit,  perhaps,  eight  years  more. 
And  then  there  is  another  thing,  it  helps  a  man  once  in  a  while  to 
bring  him  back  to  the  people  and  let  him  know  that  he  is  one  of  the 
people,  that  he  is  not  above  the  people  so  far  that  he  can  look  over 
them  and  disregard  their  rights  and  everything  of  that  kind.  He 
should  once  in  a  while  be  brought  back  to  the  people,  particularly 
our  Supreme  Court  General  Term  judges.  They  are  sometimes 
pretty  arbitrary.  I  have  found  them  so.  I  have  found  instances 
in  which  it  was  very  difficult  to  be  heard  by  them  because  they  were 
so  arbitrary.  In  one  case  I  was  obliged  to  pitch  into  the  decision 
that  they  had  made  because  they  would  not  let  me  argue  the  case 
until  I  had  attacked  it.  They  kept  thrusting  a  previous  decision  of 
theirs  in  my  face.  I  asked  them  to  let  me  argue  the  case  that  I 
had  before  them,  and  not  have  it  settled  by  the  prior  case.  I 
expressed  that  request  to  them  several  times,  but  they  still  kept 
throwing  the  other  case  at  me.  I  finally  turned  upon  them,  and  I 
said:  "Any  good  lawyer  that  examines  that  case  that  you  refer  to 
will  see  that  it  was  incorrectly  decided."  I  said  the  first  authority 
quoted  was  not  in  point  at  all;  it  was  not  analogous  at  all,  and  for 
certain'  reasons  —  I  went  on  and  told  them  the  reasons  —  the  second 
authority  cited  was  not  analogous  at  all,  for  such  and  such  reasons, 
and  I  stated  the  reasons,  and  so  Judge  Talcott,  who  wrote  the 
opinion  turned  to  me  and  said:  '*  Wasn't  that  last  case  analogous? " 
Said  I,  "  No,  sir,  for  another  reason; "  and  I  went  on  and  gave  him 
the  other  reason,  and  it  shut  the  court  up  (laughter),  and  they  said 
I  might  go  on  and  argue  my  case.  I  did  argue  it,  and  I  answered 
every  point  that  the  General  Term  presented  to  me,  every  single 
point;  but  they  finally  went  off  on  a  point  that  neither  party  raised 
and  they  beat  me  at  last.  I  knew  when  I  attacked  their  decision 
that  I  was  likely  to  be  beaten,  but  I  saw  that  I  could  not  argue  my 
case  unless  I  did  pitch  into  that  decision;  and  I  had  examined 
it,  and  I  knew  it  was  not  good  law,  and  they  knew  it  when  I 
came  to  point  it  out  to  them  and  call  their  attention  to  it.  It  was 
one  of  Judge  Talcott's  decisions  that  he  never  looked  at  or  exam- 
ined. He  cited  two  or  three  decisions  to  support  it  which  had  no 
analogy  whatever  to  the  case;  and  when  I  came  to  point  it  out  to 
them  they  had  nothing  to  say;  they  were  quiet  so  far  as  this  case 
was  concerned.  I  knew  that  there  was  danger,  and  for  that  reason 
I  tried  all  I  could  to  avoid  pitching  into  the  previous  decision.  I 
had  made  up  my  mind  beforehand  that  I  would  not  meddle  with  the 
previous  decision  if  I  could  help  it;  but  when  I  found  I 
could  not  do  otherwise  than  to  pitch  into  that  deci- 
sion, I  had  audacity  enough  to  do  so.  I  once  heard  a  young 


August  20.]  CONSTITUTIONAL  CONVENTION.  937 

lawyer  say  that  there  was  nothing  in  this  world  like  a  little 
audacity.  I  had  audacity  enough  to  pitch  into  their  decision,  not- 
withstanding it  was  made  by  Judge  Talcott,  one  of  the  ablest,  per- 
haps, of  the  Supreme  Court  judges  upon  the  bench  at  that  time. 
The  next  time  I  argued  a  case  before  them,  they  let  me  alone  till 
I  got  through.  But  subsequently  I  had  a  case  before  them 
involving  $60,000.  Judge  Talcott  took  it  home  with  him.  I  do  not 
suppose  the  other  men,  of  course,  ever  looked  at  it,  and  there  was 
$5,000  charged  twice  over  in  the  accounts.  I  had  pointed  out  in 
my  brief  just  where  those  items  were,  and  he  never  looked  at  my 
brief  at  all.  They  would  not  give  me  time  enough  to  read  it  or  to 
argue  the  case;  and  the  result  was  I  had  to  go  to  the  Court  of 
Appeals  with  that.  They  beat  me.  And  the  lawyer  on  the  other 
side  said :  "  The  court  never  looked  at  your  brief.  If  they  had  they 
would  have  struck  out  $5,000,  because  we  would  have  struck  it  out 
if  you  had  asked  us,  it  was  so  plain.  I  went  to  the  Court  of  Appeals 
and  I  used  the  same  brief  that  I  did  for  the  General  Term,  and  there 
was  not  a  point  in  the  brief  that  I  used  at  General  Term  but  that 
the  Court  of  Appeals  referred  to,  and  there  were  two  fatal  errors  in 
the  decision  of  the  court  below  —  two  fatal  errors;  and  they  further- 
more said  that  all  these  irregularities  —  this  $5,000  —  should  be 
struck  out,  and  alluded  to  every  single  point  I  had  made  in  the  case. 
I  speak  of  that  as  showing,  perhaps,  the  necessity  of  once  in  a  while 
having  a  change  of  judges.  I  think  eight  years  is  long  enough  to 
continue  a  judge  on  the  bench.  They  get  after  a  while  so  that  they 
do  not  care  a  picayune  whether  they  decide  right  or  wrong;  go  off 
somewhere  perhaps,  and  without  looking  at  the  case  or  allowing 
you  to  go  through  with  your  brief  and  argument.  Now,  in  this 
case,  there  were  some  seven  or  eight  hundred  pages  in  the  printed 
case,  and  I  could  not  have  reduced  it  without  the  consent  of  the 
lawyer  on  the  other  side,  and  he  would  not  consent.  I  could  not 
reduce  it  to  any  smaller  compass.  I  had  a  lengthy  brief  upon  the 
case;  I  was  obliged  to  have  it  in  order  to  cover  a  case  of  that  magni- 
tude —  the  claim  was  for  $150,000,  but  they  got  a  judgment  of  some 
fifty  or  sixty  thousand  dollars.  I  asked  the  court  to  give  me  a  little 
additional  time.  They  occupied  half  of  my  time  in  interrogating  me 
with  reference  to  the  case  and  why  there  was  so  much  of  it,  and 
used  up  half  of  my  time  and  so  I  had  but  half  an  hour  in  which  to 
present  a  case  of  800  pages.  When  they  said  my  hour  was  up  I 
asked  them  for  a  little  more  time;  I  told  them  it  was  an  important 
case  involving  $60,000,  and  I  ought  to  have  more  time.  Oh,  they 
said,  they  could  read  my  brief.  Well,  they  never  read  it;  they  never 
read  it.  The  attorney  on  the  other  side  said  they  could  not  have 


938  REVISED  RECORD.  [Monday, 

read  it  or  they  would  have  struck  out  at  least  $5,000  from  that 
judgment.  Now,  for  that  reason,  among  other  reasons,  I  am  for 
limiting  the  term  of  the  judges  to  eight  years.  I  think  that  is  long 
enough.  If  they  are  good  judges  and  attend  to  their  business  and 
do  their  duty  fairly,  re-elect  them.  I  would  go  for  re-electing  them 
every  time  if  they  did  their  duty.  If  they  did  not  do  their  duty;  if 
they  did  as  this  court  did,  I  do  not  think  I  should  go  very  strongly 
for  re-electing  them.  I  should  not  be  very  fierce  at  all  events. 

Mr.  Pratt  —  Mr.  Chairman,  I  had  intended  to  urge  this  amend- 
ment upon  the  consideration  of  the  Convention.  After  the 
extended  remarks  of  the  gentleman  who  has  just  taken  his  seat,  I 
deem  it  entirely  unnecessary. 

Mr.  Marshall  —  Mr.  Chairman,  I  should  consider  any  change  in 
the  tenure  of  office  of  the  judges  of  the  Supreme  Court,  such  as 
that  which  has  been  suggested  by  the  motions  which  are  now  before 
this  committee,  as  most  unfortunate.  There  is  no  good  reason 
why  there  should  be  such  a  change.  When  we  consider  the  tenure 
of  office  of  the  judges  of  the  high  courts  of  other  countries  and  of 
other  States  in  this  country,  and  of  the  federal  courts,  we  find  that 
we  have  a  rule  established  there  in  favor  of  even  a  longer  term  than 
that  which  was  adopted  in  our  Constitution  by  the  Convention  of 
1867.  The  tenure  of  office  of  all  the  English  judges  is  for  life,  or 
during  good  behavior.  The  tenure  of  office  of  the  judges  of  the 
Supreme  Court  of  the  United  States  is  for  life,  or  during  good 
behavior;  so  also  that  of  all  the  judges  of  the  various  district  and 
circuit  courts  of  the  United  States,  and  I  believe  that  the  same  is 
also  true  of  the  judges  of  the  Supreme  Court  of  Massachusetts.  In 
the  Convention  of  1867,  there  was  a  strong  movement  in  favor  of 
giving  a  life  tenure  to  the  judges  of  our  Supreme  Court.  There 
was,  on  the  other  hand,  a  party  which  advocated  a  shorter  term  of 
six  or  eight  years;  and  the  result  was  an  agreement  upon  the  term 
of  fourteen  years  as  a  compromise  among  the  various  persons  who 
were  advocating  one  or  the  other  of  those  two  rules.  Now,  the 
experience  in  this  State  has  been  one  of  great  satisfaction  among 
lawyers  and  among  the  people  generally  with  the  terms  of  office 
that  have  been  given  to  our  judges.  Times,  I  think,  have  changed 
since  the  day  when  my  friend  from  OsWego  county  tried  his  case 
before  the  judge  with  the  experience  which  he  has  noted.  Our 
judges  now  have  a  different  policy,  pursue  a  different  rule  in  the 
determination  of  cases  which  are  submitted  to  them.  The  fact  is 
that  we  very  frequently  elect  judges  to  the  Supreme  Court  who  have 
had  very  little  experience  as  trial  judges,  who  have  even 


August  20.]  CONSTITUTIONAL  CONVENTION.  939 

had  very  little  experience  in  the  trial  of  causes,  who,  after  the  lapse 
of  a  number  of  years,  with  the  valuable  experience  which  they  have 
gained  upon  the  bench,  become  valuable  and  able  judges.  They 
become,  practically,  experts  in  the  law  and  in  the  determination  of 
differences  and  controversies  which  are  presented  before  the  judi- 
cial tribunals.  Now,  the  people,  who  have  to  some  extent  paid 
for  the  experience  which  has  been  obtained  by  these  judges,  are 
entitled  to  the  benefit  of  it,  and,  therefore,  it  would  be  a  most  unfor- 
tunate thing  if  a  man,  after  he  had  acquired  the  ability  to  dispatch 
causes,  to  promptly  decide  questions  which  are  submitted  to  him, 
should  have  his  career  terminated  that  another  might  be  selected  to 
take  his  place,  or  should  be  required  once  more  to  go  into  the 
cauldron  of  politics  for  the  purpose  of  procuring  at  the  polls  an 
endorsement  or  a  second  term.  The  term  of  eight  years  is  a  very 
short  term.  It  is  too  short  a  term  in  my  judgment.  Before  the 
expiration  of  the  eight  years,  if  any  judge  who  is  upon  the  bench 
has  any  pride  or  any  love  for  the  duties  which  are  assigned  to  him 
as  a  judge,  it  is  most  natural  that  he  should  seek  a  re-election. 
Now,  the  result  of  that  is  that  he  is  at  once  converted  from  a  judge 
into  a  politician,  and  the  evils  which  will  result  therefrom  are  very 
manifest  and  require  no  discussion  at  my  hands. 

With  a  term  of  fourteen  years  a  judge  is  kept  practically  out  ot 
politics.  He  will,  by  that  time,  either  have  reached  an  age  when  a 
re-election  is  no  longer  desirable;  or,  at  all  events,  if  he  is  a  good 
judge,  he  will  have  merited  a  renomination,  and  there  will  not  be 
such  a  scramble  for  the  office  as  there  would  be,  and  usually  is,. in 
the  case  of  judges  serving  but  short  terms.  Now,  that  was  one  of 
the  difficulties  under  the  old  system,  when  judges  of  the  Court  of 
Appeals  held  their  places  but  for  six  years.  Such  men  as  Judge 
Comstock  were  unable  to  obtain  a  re-election  because  the  matter 
was  at  once  submitted  to  the  politicians,  and  the  result  was  there 
was  a  scramble  among  those  who  had  ambition  to  serve  upon  the 
Court  of  Appeals  to  take  the  position  occupied  by  such  judges. 
Under  our  present  system  we  have,  by  the  unanimous  vote  of  the 
people  of  the  State,  re-elected  such  judges  as  Judge  Rapallo,  Judge 
Andrews  and  Judge  Earl  after  they  had  served  fourteen  years;  and 
the  same  thing  has  been  true  of  judges  of  the  Supreme  Court. 
They,  therefore,  have  been  re-elected  upon  their  merits,  without 
being  required  to  resort  to  appeals  to  politics.  I  very  much  fear 
that  if  we  shorten  the  terms  of  judges  we  should  find  that  our 
judiciary  would  be  brought  into  politics;  while  on  the  other  hand, 
if  we  retain  the  present  system  they  will  be  kept  out  of  politics,  and 
that  in  itself  is  a  blessing  which  cannot  be  prized  too  highly. 


940  REVISED  RECORD.  [Monday, 

Mr.  Moore  —  Mr.  Chairman,  1  am  heartily  in  favor  of  the  term 
for  ten  years.  I  do  not  believe  that  my  learned  friend,  Mr.  Marshall, 
ever  knew  anything  about  judicial  conventions  in  the  Fourth  Judi- 
cial District  if  he  thinks  that  fourteen  years  is  long  enough  for  any 
judge.  The  term  was  made  fourteen  years  principally  upon  the 
ground  that  the  term  was  so  long  that  no  judge  would  attempt  to  get 
a  re-election;  and  my  experience  is  that  after  he  has  had  it  fourteen 
years  the  bite  of  the  cherry  is  so  wonderfully  sweet  to  him  that  he 
wants  two  bites  of  the  cherry;  and  I  do  not  see  that  the  term  of 
fourteen  years  keeps  the  office  out  of  politics.  The  biggest  political 
scrambles  I  have  ever  been  in  —  and  I  have  been  in  some  —  have 
been  over  this  very  question  of  a  renomination  of  a  judge  after  a 
term  of  fourteen  years.  There  are  some  special  cases,  Mr.  Chair- 
man, where  a  judge  like  Judge  Andrews  or  Judge  Earl,  or  some  of 
those  men  would  properly  be  re-elected  after  a  long  term;  but  I 
believe  that  if  we  are  to  have  the  judges  scrambling  after  a  fourteen- 
year  term  for  a  renomination  and  re-election,  we  can  just  as  well 
begin  to  shorten  up  the  term.  I  do  not  believe,  myself,  that  eight 
years  is  long  enough;  but  I  do  believe  that  ten  years  is  long 
enough;  and  then  if  a  judge  wants  the  office  again  let  him  scramble 
for  it  again;  and  if  he  be  re-elected  he  will  then  have  sat  upon  the 
bench  twenty  years,  which  in  this  great  State  ought  to  be  honor 
and  emolument  enough  to  satisfy  any  ordinary  hungry  judge.  I 
am  in  favor  of  ten  years. 

Mr.  Bowers  —  Mr.  Chairman,  I  had  supposed  until  I  heard  the 
remarks  that  have  been  dropped  this  evening  by  some  of  my  asso- 
ciates from  the  northern  and  western  part  of  the  State,  that  we  were 
attempting  to  revise  a  judiciary  article  from  the  standpoint  of 
benefit  to  the  public  and  not  from  the  standpoint  of  what  was  good 
enough  or  long  enough  for  a  particular  judicial  officer.  I  am 
quite  in  accord  with  the  suggestion  that  ten  years  of  judicial  service 
is  enough  for  any  man  as  a  man,  and  that  the  salary  that  he  receives 
during  that  period  is  all.  and  perhaps  more,  than  he  has  a  right  to 
ask  from  the  State;  but  if  you  deal  with  the  question  from  the 
standpoint  of  the  people's  interests,  all  that  you  have  to  consider  is, 
on  what  basis  will  justice  be  best  administered?  I  am  not 
acquainted  with  some  of  the  methods  that  have  been  referred  to 
this  evening  in  relation  to  scrambling  for  renomination.  I  had 
supposed  from  the  character  of  the  judges  from  the  northern  part  of 
the  State,  whom  I  have  met,  and  those  from  my  own  part  of  the 
State  before  whom  I  practice,  that  when  they  were  renominated 
they  were  renominated  because  of  meritorious  service;  and  if  a  man 
has  served  the  people  well  for  fourteen  years,  he  is  better  fitted  to 


August  20.]  CONSTITUTIONAL  CONVENTION.  941 

continue  to  serve  them ;  and  it  is  perfectly  proper  that  he  should  be 
renominated  if  such  be  the  case.  Now,  I  regard  this  proposed 
amendment  as  of  very  grave  moment  to  the  success  of  this  article. 
I  had  not  heard  until  to-night  that  any  one  criticised  the  adminis- 
tration of  justice  since  we  have  had  the  term  for  fourteen  years.  It 
was  a  good  compromise  between  those  who  claimed  a  superiority  for 
an  elective  judiciary  and  those  who  claimed  a  superiority  for  an 
appointive  judiciary.  It  was  a  term  so  long  as  to  place  the  judge 
beyond  the  control  of  politicians  and  it  left  him  free  simply  to 
administer  justice.  It  was  not  so  long  but  that  he  was  called  upon 
to  render  an  account  of  his  actions  to  the  people  within  a  reasonable 
period.  It  has  worked  well  in  the  State.  It  would  be  most  unfor- 
tunate for  us  to  change  the  judiciary  article  in  any  particular  where 
there  is  not  a  crying  need  for  a  change;  and  I  sincerely  hope  that 
this  amendment  to  reduce  the  term  to  ten  or  to  eight  years  will  fail, 
and  that  the  present  term  of  fourteen  years  for  all  the  justices  will 
be  maintained. 

The  Chairman  put  the  question  on  the  adoption  of  the  amend- 
ment moved  by  Mr.  Green,  providing  for  a  term  of  eight  years,  and 
it  was  determined  in  the  negative. 

Mr.  McKinstry  —  Mr.  Chairman,  I  did  not  propose  to  take  any 
part  in  the  discussion  of  the  judiciary  article,  not  being  a  lawyer, 
but  I  do  feel  that  as  to  this  matter  of  the  term  it  would  be,  I  might 
almost  say,  a  mistake,  not  to  reduce  it  to  ten  years.  1  well  remem- 
ber when  the  term  was  shorter,  and  I  have  yet  to  learn  that  we  have 
had  any  better  judges  or  any  better  service  with  the  longer  term 
and  the  higher  salary  than  we  had  before.  I  have  heard  a  great 
many  lawyers  say  that  the  character  of  the  judiciary  has  decreased; 
that  the  court  does  not  stand  as  it  might,  as  it  did  under  the  old 
system.  I  do  know  this,  that  this  long  term  and  high  salary, 
making  the  office  a  princely  fortune,  has  led  to  a  great  deal  of 
scandal  in  the  nomination  for  judges.  A  man  can  well  afford  to 
put  in  a  great  deal  of  .money  to  get  the  office,  or  the  nomination. 
I  heard  two  lawyers  talking  confidentially  •  to-night  about  a  judge 
that  paid  $65,000  to  get  a  nomination.  Well  now,  that  is  no 
improvement.  I  would  say,  further,  that  the  warning  given  by 
Mr.  Brown  this  afternoon  has  a  great  deal  of  force  in  it.  The 
people  object  to  multiplying  offices,  to  multiply  expenses,  and  their 
prejudices  in  the  beginning  are  against  this  article  on  that  account, 
or  will  be.  I  hear  some  say  that  there  is  no  fault  found  with  the  pres- 
ent condition.  I  have  heard  more  fault  found  with  this  judiciary  arti- 
cle of  the  present  Constitution  than  anything  else  in  it.  The  people 


942  REVISED  RECORD.  [Monday, 

at  large  feel,  if  I  may  use  the  expression,  that  they  were  "  buncoed  " 
in  that  operation.  They  feel  in  the  first  place  that  there  was  hardly 
a  voter  in  the  State  that  supposed  he  was  voting  that  any  judge  in 
the  State  could  by  any  possibility  get  over  four  years  pension  out  of 
that  article,  and  it  was  felt,  I  think  - 

Mr.  Marshall  —  Mr.  Chairman,  may  I  ask  the  gentleman  a 
question? 

The  Chairman  —  Will  the  gentleman  give  way  for  a  question? 
Mr.  McKinstry  —  Certainly. 

Mr.  Marshall  —  Do  you  mean  to  say  that  the  provision  with  ref- 
erence to  pensions  is  contained  in  the  judiciary  article  as  originally 
carried?  It  was  only  an  amendment  passed  some  twelve  years 
afterwards,  was  it  not? 

Mr.  McKinstry  —  Well,  whenever  it  was  passed.  They  supposed 
it  was  only  four  years  pension  that  was  allowed  at  the  most,  and 
now  here  comes  a  proposition  to  put  in  thirty  additional  Supreme 
Court  judges,  twelve  more  to  be  paid.  Now,  I  am  not  going  to 
oppose  that.  I  concede  the  superior  judgment  of  the  Judiciary 
Committee  that  that  is  a  good  thing;  but  I  will  say  that  if  you 
reduce  this  term  to  ten  years  it  will  be  so  popular  that  it  will  put 
the  adoption  of  this  article  beyond  all  question.  It  would  be  the 
best  thing  you  could  do. 

Mr.  C.  B.  McLaughlin  —  Mr.  Chairman,  I  desire  to  say  but  a 
word  upon  this  proposed  amendment.  I  agree  with  what  the 
gentleman  from  New  York,  Mr.  Bowers,  said.  I  supposed  we  were 
here  to  amend  and  revise  the  Constitution  in  the  interests  of  the 
people  of  the  State.  I  have  yet  to  hear  of  any  serious  complaint  that 
has  been  made  from  any  portion  of  the  State  that  the  term  of  office 
of  the  justices  of  the  Supreme  Court  is  too  long.  What  is  to  be 
gained  by  shortening  this  term?  What  interest  is  to  be  derived  by 
the  people  in  shortening  it?  Now,  it  certainly  does  not  remove  the 
'office.  It  seems  to  me  it  would  be  a  great  mistake,  a  serious  mis- 
take, to  shorten  this  term  to  ten  years,  because  during  the  time  that 
this  term  has  been  what  it  is  now,  there  has  gone  up  from  no  portion 
of  the  State,  so  far  as  I  know,  any  demand  for  shortening  it.  I  hope 
that  the  article  will  be  adopted  as  is  proposed  by  the  committee  in 
this  respect. 

Mr.  A.  H.  Green  —  Mr.  Chairman,  I  have  listened  to  the  remarks 
of  the  gentlemen  that  have  spoken  here.  By  one  gentleman  we  are 
told  that  the  perpetuation  of  the  judges  during  these  long  terms 
leads  to  indifference  —  and  I  do  not  recollect  whether  he  used  the 
word  "  stupidity  "  or  not,  but  something  equivalent.  On  the  other 


August  20.]  CONSTITUTIONAL  CONVENTION.  943 

hand,  Mr.  Marshall  thinks  that  the  public  derive  great  benefit  from 
the  experience  of  judges.  Now,  sir,  my  observation  on  this  sub- 
ject has  been  this,  that  the  longer  the  term  and  the  higher  the 
salary  the  worse  judges  you  get.  It  becomes  a  matter  of  political 
scramble,  and  any  man  that  knows  anything  about  these  matters 
down  at  the  other  end  of  the  State,  the  end  that  I  live  in, 
knows  that  that  is  the  fact.  I  am  totally  opposed  to  these  long 
terms  either  in  the  judiciary,  the  executive  or  the  legislature.  I 
think  it  is  a  most  wholesome  provision  that  men  should  be  returned 
frequently  to  the  people;  and  every  man  here  knows  that  if  a  judge 
performs  his  duty  faithfully  he  will  be  re-elected.  I  regret  that  the 
term  of  eight  years  has  been  rejected.  I  think  if  my  friend  from 
New  York  has  not  heard  of  any  talk  about  shortening  the  term  any- 
where, his  ears  must  have  been  very  much  stopped.  I  hear  it 
everywhere,  all  around;  and  I  believe  it  is  a  most  unpopular 
measure  to  continue  the  terms  of  these  judges  for  fourteen  years. 
It  is  about  time  to  put  a  stop  to  the  whole  paraphernalia  that  sur- 
rounds these  men,  and  the  state  and  the  arrogance  that  they  have 
developed  in  the  conduct  of  their  offices  in  so  long  terms.  I  hope, 
as  the  eight-year  amendment  has  failed  —  I  am  sorry  it  has  failed ; 
it  is  full  long  enough;  if  anything  it  is  too  long — I  hope  that  the 
ten-year  amendment  will  prevail. 

Mr.  Griswold  —  Mr.  Chairman,  I  think  that  there  is  a  mistake  in 
speaking  of  a  compromise  between  a  term  for  life  in  the  judges  and 
a  term  for  fourteen  years.  At  the  time  when  the  judges  were  first 
provided  for  by  the  Constitution,  the  provision  was  for  six  years, 
and  not  for  fourteen,  and  that  was  the  term  of  office  for  a  number 
of  years,  I  could  not  say  how  long;  and  afterwards,  and  when  I 
thought  at  the  time  there  was  considerable  influence  exercised  by 
the  judges  then  in  office,  who  expected  to  be  candidates,  the  pro- 
vision was  adopted  making  the  term  fourteen  years.  Now,  accord- 
ing to  my  observation,  I  think  that  when  good  men  are  elected  as 
judges,  experienced  always,  as  they  ought  to  be,  those  judges 
during  the  first  period  of  their  term,  have  been  as  good  judges  as 
those,  as  they  themselves  were,  who  had  served  a  long  period  of 
years;  and  I  think  we  have  all  observed  on  many  occasions  that 
the  new  judges,  if  competent  men  were  elected,  men  that  were  good, 
practical  lawyers,  were  the  best  judges  that  could  be  had.  They 
did  more  work;  they  were  vigorous.  There  may  be  a  slight  objec- 
tion perhaps  that  with  the  shorter  terms  the  judges  may  be  a  little 
influenced  by  politicians;  but  on  the  whole,  if  a  judge  is  elected  for 
eight  years,  if  he  is  a  good  judge,  I  think  it  will  very  seldom  be 
found  that  he  will  be  interfered  with  by  the  proposition  of  his  being 


944  REVISED  RECORD.  [Monday, 

elected  the  second  time.  I  have  thought  this  thing  over  a  good 
deal,  even  before  this  Convention  met,  and  I  admit  that  they  may 
possibly  be  a  little  affected  by  looking  toward  re-election; 
but,  notwithstanding  that,  if  you  have  a  good  judge  elected,  the 
people  will  nearly  always  indorse  that  judge  for  a  second  term. 
On  the  other  hand,  the  judges  now  being  elected  by  political  influ- 
ence —  and  there  are  a  good  many  according  to  my  observation  — 
are  not  the  best  and  the  most  competent  and  fit  judges;  and  when 
they  are  elected  they  have  to  remain  there;  you  cannot  get  them 
out,  and  they  have  to  stay  there  for  life.  I  believe  it  is  better  to 
give  the  people  a  chance  of  trying  their  judges  for  eight  years.  If 
they  are  good,  keep  them;  if  not,  at  least  get  rid  of  them  after  you 
have  been  aggrieved  by  them  for  eight  years. 

Mr.  Smith  —  Mr.  Chairman,  ten  years  is  a  long  time  —  a  decade. 
Time  is  measured  by  decades.  A  decade  is  a  very  long  time. 
A  judge  should  be  honest,  learned,  courteous,  patient,  pains- 
taking and  industrious.  He  should  be  free  from  prejudice  and  pas- 
sion and  indulgent  to  the  natural  weaknesses  and  infirmities  of 
human  nature.  He  should  give  the  same  attention,  and  display 
equal  patience  in  the  hearing  of  cases  involving  comparatively 
small  amounts,  as  in  cases  involving  millions.  I  have  had  a  long 
experience  at  the  bar.  I  commenced  studying  law  when  I  was  a 
mere  boy.  I  have  occasionally  been  wounded  by  infirmity  of 
temper  on  the  bench,  and  when  I  am  confident  I  was  not  guilty  of 
any  want  of  courtesy  and  respect.  If  a  judge  is  a  good  judge,  if  he 
posseses  the  qualifications  and  characteristics  I  have  enumerated, 
the  members  of  the  bar  will  be  glad  of  his  continuance,  but  if  he  is 
not  a  satisfactory  judge,  and  does  not  possess  the  desired  qualifica- 
tions and  characteristics,  they  will  be  only  too  glad  of  an  oppor- 
tunity for  his  retirement.  I  repeat  that  ten  years  is  a  long  period. 
It  is  long  enough  for  a  trial  at  least.  I  am  in  favor  of  limiting  the 
term  of  judges  elected  in  the  future  to  ten  years  and  doubt  not  that 
such  a  change  would  meet  popular  approval. 

Mr.  Cookinham  —  Mr.  Chairman,  I  hope  the  Convention  before 
adopting  the  amendment  will  consider  this  one  thing.  Do  they 
now  desire  to  curtail  the  terms  of  office  of  every  Supreme  Court 
judge  in  the  State?  For  I  believe,  should  this  amendment  prevail, 
and  this  Constitution  be  adopted,  there  would  be  no  constitutional 
provision  making  the  term  of  office  fourteen  years,  and,  therefore, 
the  justice  of  the  Supreme  Court  who  was  elected  to  serve  for 
fourteen  years  would  only  serve  for  ten  years.  I  do  not  believe 
this  Convention  desires  to  perpetrate  upon  those  gentlemen  that 


August  20.]  CONSTITUTIONAL  CONVENTION.  945 

act,  and  shorten  their  terms,  as  I  believe  it  certainly  would  shorten 
their  terms,  if  this  amendment  should  prevail. 

Mr.  Smith  —  We  understand  this  relates  only  to  the  judges  who 
are  to  be  elected  in  the  future,  and  does  not  apply  to  those  who  are 
now  in  office. 

The  Chairman  then  put  the  question  on  the  adoption  of  the 
amendment  offered  by  Mr.  Pratt,  and  it  was  determined  in  the 
negative  by  a  rising  vote. 

The  President  resumed  the  chair. 
The  Secretary  read  the  notices  of  committee  meetings. 
The    Convention   adjourned   until   to-morrow    morning   at   ten 
o'clock. 


Tuesday  Morning,  August  21,  1894. 

The  Constitutional  Convention  of  the  State  of  New  York,  met 
in  the  Assembly  Chamber  at  the  Capitol  at  Albany,  N.  Y.,  Tues- 
day morning,  August  21,  1894. 

President  Choate  called  the  Convention  to  order  at  10  A.  M. 

The  Rev.  R.  H.  Shirley  offered  prayer. 

The  President  —  Mr.  O'Brien  moves  that  the  reading  of  the 
Journal  be  dispensed  with. 

Mr.  Cookinham  —  Mr.  President,  I  have  received  a  communica- 
tion from  Mr.  Gilbert,  who  was  excused  for  yesterday,  saying  that  it 
is  impossible  for  him  to  reach  here  until  this  evening,  and  he  asks 
to  be  excused  from  the  morning  and  afternoon  session. 

The  President  —  If  there  is  no  objection,  the  reading  of  the^ 
Journal  is  dispensed  with. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Gilbert  and  it  was  determined  in  the  affirmative. 

Mr.  Ackerley  —  Mr.  President,  I  rise  to  a  question  of  personal 
privilege. 

The  President  —  Mr.  Ackerly  wishes  to  state  a  matter  of  privilege. 

Mr.  Ackerly  —  Mr.  President,  when  this  Convention  adopted  the 
rule  that  if  a  person  was  absent  without  excuse  he  should  not 
collect  his  pay  for  that  time;  from  that  time  forward  when  I  had 
any  business  of  a  personal  nature  I  stayed  out  of  the  Convention 
without  being  excused,  and  I  have  so  certified.  I  have  understood 
from  the  President  of  this  Convention,  stating  here  on  the  floor, 

60 


946  REVISED  RECORD.  [Tuesday, 

that  that  was  a  proper  course  to  pursue.  Last  Saturday  afternoon 
I  was  absent  with  that  understanding  from  the  sessions  of  the 
Convention.  Now  I  want  to  know  whether  I  am  right  or  wrong; 
whether  I  am  to  be  blacklisted  with  that  understanding,  which  I 
supposed  was  in  accordance  with  the  rules  of  this  Convention. 
There  was  no  other  punishment  or  condition,  as  I  understood  it, 
of  any  kind,  to  be  imposed  by  the  Convention.  If  there  was,  I 
am  perfectly  willing  to  comply  with  it. 

The  President  —  The  rules  are  perfectly  explicit  if  a  man  stays 
away. 

Mr.  Maybee  —  Mr.  President,  I  desire  to  be  excused  from  attend- 
ance at  the  session  of  next  Saturday  afternoon  and  next  Monday 
forenoon,  on  account  of  the  condition  of  my  health. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Maybee,  as  requested,  and  it  was  determined  in  the  affirmative. 

Mr.  Campbell  —  Mr.  President  I  desire  to  be  excused  from 
attendance  here  on  Monday  next  as  I  have  been  subpoenaed  as  a 
witness  in  the  probate  of  a  will. 

The  President  put  the  question  on  granting  leave  of  absence 
to  Mr.  Campbell,  and  it  was  determined  in  the  affirmative. 

Mr.  T.  A.  Sullivan  —  Mr.  President,  I  desire  to  call  attention 
to  the  fact  that  Mr.  Putnam's  absence  to-day  is  due  to  his  con- 
tinued illness. 

The  President  put  the  question  on  granting  leave  of  absence 
to  Mr.  Putnam,  and  it  was  determined  in  the  affirmative. 

Mr.  Sandford  —  Mr.  President,  I  desire  to  be  excused  from 
attendance  on  the  twenty-fourth  and  twenty-fifth  of  this  month. 

The  President  put  the  question  on  granting  leave  of  obsence 
to  Mr.  Sandford,  and  it  was  determined  in  the  affirmative. 

Mr.  Lyon  —  Mr.  President,  I  have  a  petition  asking  that  an 
amendment  be  provided  for  regarding  the  yearly  inspection  ot 
charitable  institutions. 

Referred  to  the  Committee  on  Charitable  Institutions. 

Mr.  Francis  —  Mr.  President,  I  have  a  petition  from  the  manu- 
facturers of  plumbing  materials  in  the  city  of  New  York  in  reference 
to  prison  labor. 

The  President  —  That  was  received  yesterday  and  referred.  This 
is  a  duplicate  of  it.  To-day,  by  a  special  order  of  the  Convention, 
final  reports  are  to  be  submitted  by  the  various  committees.  That 
business  is  now  in  order  and  the  Secretary  will  call  the  list  of  the 
committees. 


August  21.]  CONSTITUTIONAL  CONVENTION.  947 

The  Secretary  proceeded  to  call  the  roll  of  committees. 

Mr.  J.  Johnson  —  Mr.  President,  on  behalf  of  the  Committee  on 
Cities,  I  ask  unanimous  consent  to  submit  the  article  on  franchise 
later  in  the  day.  The  Clerk  is  detained  at  home  by  sickness,  and 
the  report  has  been  delayed. 

Mr.  Vedder,  from  the  Committee  on  Legislative  Powers  and 
Duties,  to  which  was  referred  the  resolution  offered  by  Mr.  A.  H. 
Green,  with  respect  to  the  divergence  of  the  water  of  the  Niagara 
river,  submitted  a  report  accompanied  by  a  proposed  amendment 
to  the  Constitution. 

The  President  —  The  report  of  the  Committee  on  Legislative 
Powers  and  Duties,  in  regard  to  the  waters  of  the  Niagara  river, 
is  a  somewhat  lengthy  document.  Will  the  Convention  have  it 
read  or  order  it  to  be  printed? 

Mr.  Barhite  —  Mr.  President,  the  report  of  the  committee  con- 
tains a  proposed  amendment  to  the  Constitution.  My  personal 
opinion  is  that  it  should  go  to  the  Committee  of  the  Whole  and 
that  the  report  need  not  be  read  until  that  time,  as  it  is  a  somewhat 
lengthy  document.  If  it  is  read  now  it  will  take  considerable  of 
the  time  of  the  Convention. 

The  President  —  The  proposed  amendment  accompanying  the 
report  will  have  to  be  read  the  first  and  second  time  and  referred 
to  the  Committee  of  the  Whole. 

Mr.  Barhite  —  Mr.  President,  in  order  to  save  any  question,  I 
move  that  the  report  of  the  Committee  on  Legislative  Powers  and 
Duties,  in  respect  to  the  obstruction  of  the  waters  of  the  Niagara 
river,  be  printed  and  placed  on  the  desk  of  the  members. 

The  President  put  the  question  on  the  motion  of  Mr.  Barhite,  and 
it  was  determined  in  the  affirmative. 

The  President  —  The  Secretary  will  read  the  proposed  amend- 
ment accompanying  the  report. 

The  Secretary  read  the  proposed  amendment  and  it  was  referred 
to  the  Committee  of  the  Whole  (O.  I.  No.  390;  P.  No.  442). 

Mr.  Vedder,  from  the  Committee  on  Legislative  Powers  and 
Duties,  to  which  was  referred  the  proposed  amendment  introduced 
by  Mr.  Gilbert  (introductory  No.  385),  entitled  a  proposed  amend- 
ment to  amend  section  6  of  article  10,  in  relation  to  the  time  when 
the  Legislature  shall  assemble,  reports  in  favor  of  the  passage 
of  the  same,  which  report  was  agreed  to  and  the  said  amendment 
committed  to  the  Committee  of  the  Whole. 

Mr.  Root,  from    the    Committee    on    Judiciary,  to  which  was 


948  REVISED  RECORD.  [Tuesday, 

referred  the  proposed  amendment  introduced  by  Mr.  I.  S.  Johnson 
(introductory  No.  158),  entitled  a  proposed  amendment  to  amend 
section  i  of  article  10,  relating  to  oaths  of  office,  reports  in  favor 
of  the  passage  of  the  same,  which  report  was  agreed  to  and  the 
said  amendment  committed  to  the  Committee  of  the  Whole. 

Mr.  Root,  from  the  Committee  on  Judiciary,  reported  as  a  sub- 
stitute for  No.  334,  introduced  by  Mr.  Foote,  and  No.  223,  intro- 
duced by  Mr.  Lauterbach,  a  proposed  constitutional  amendment 
to  amend  article  2,  by  adding  new  sections  relating  to  the  use  of 
money  for  political  purposes,  which  report  was  agreed  to  and  the 
said  amendment  committed  to  the  Committee  of  the  Whole 
(O.I.  No.  391;  P.  No.  443). 

Mr.  M.  E.  Lewis  —  Mr.  President,  the  Committee  on  Banking 
and  Insurance  are  ready  to  report  that  all  matters  referred  to  that 
committee  have  been  disposed  of.  There  is  nothing  now  pending 
in  that  committee. 

Mr.  Lauterbach,  from  the  Committee  on  Charities  and  Charitable 
Institutions,  presented  a  report  and  a  proposed  amendment  (O.  I. 
No.  392;  P.  No.  446). 

The  President  —  The  report  will  be  read  unless  the  chairman 
desires  to  have  it  printed  and  laid  upon  the  desks  of  the  members. 

On  motion  of  Mr.  Lauterbach,  the  report  was  ordered  printed. 

The  Committee  on  Charities  and  Charitable  Institutions  reported 
as  follows: 

It  has  carefully  considered  the  subjects  affected  by  or  referred  to 
them  in  the  various  amendments  and  in  the  numerous  petitions 
referred  to  it,  and  in  place  of  such  amendments  numbered  respect- 
ively by  their  introductory  numbers  197,  259,  268,  294  and  168,  it 
presents  herewith  a  proposed  amendment  to  article  five  of  the 
Constitution  by  adding  thereto  five  new  sections  (O.  I.  392  above), 
which  amendment  has  for  its  purpose  the  creation  of  a  constitu- 
tionally recognized  State  Board  of  Charities,  a  State  Board  of 
Lunacy,  and  a  State  Board  of  Prisons. 

The  Board  of  Charities  shall  take  the  place  of  the  existing  State 
Board  of  Charities;  shall  be  endowed  with  its  functions;  but  shall 
have  additional  powers,  the  exercise  of  which  it  is  believed  will 
serve  to  check  whatever  abuses  may  have  existed  in  the  adminis- 
tration of  the  public  or  private  charitable  institutions  in  the  State 
and  all  abuses  which  might  arise  in  the  future. 

Among  the  new  powers  delegated  to  it  will  be  the  important  and 
radical  right  to  check  the  increase  of  additional  institutions,  to 


August  21.]  CONSTITUTIONAL  CONVENTION.  949 

revoke  the  authority  of  existing  agencies  or  those  hereafter  to  be 
created,  to  receive  money,  to  remove  inmates  from  one  institution 
to  another,  and,  except  in  reformatories,  to  discharge  inmates,  and 
to  put  a  check  upon  the  power  of  the  Legislature  to  appropriate  the 
moneys  of  the  State  or  to  direct  or  authorize  any  civil  division  of 
the  State  to  appropriate  moneys  to  any  charitable  or  correctional 
organization  or  corporation  whatever  without  the  sanction  of  the 
State  Board  of  Charities,  to  be  created. 

The  powers  of  the  State  Board  of  Lunacy  are  somewhat  ampli- 
fied beyond  those  possessed  by  the  present  board,  and  a  separation 
of  the  functions  devolving  upon  it  from  those  devolving  upon  the 
State  Board  of  Charities  is  provided  for,  and  the  jurisdiction  of 
each  board  is  clearly  defined. 

The  State  Board  of  Prisons  has  no  existing  counterpart,  and  is 
intended  to  provide  supervision  and  inspection,  not  only  of  the 
State  prisons,  but  of  the  county  jails  and  penitentiaries. 

Of  the  various  amendments  which  have  been  referred  by  the 
Convention  to  your  committee,  the  ones  calling  for  the  most  serious 
consideration  were  those  which  sought  to  prevent  the  payment 
to  any  institution,  society  or  undertaking,  wholly  or  partly  under 
sectarian  or  ecclesiastical  control,  of  any  public  moneys  for  any 
educational,  charitable  or  any  other  purpose. 

Upon  these  amendments,  which  were  referred  to  the  Committee 
on  Education,  the  Committee  on  Taxation,  the  Committee  on  Legis- 
lative Powers  and  to  this  committee,  many  public  hearings  were 
had  and  elaborate  discussions  of  all  the  questions  involved  took 
place  before  committees  in  joint  session. 

The  questions  involved,  so  far  as  they  affected  the  appropriation 
or  payment  of  moneys  for  educational  purposes  to  any  institution 
under  sectarian  or  ecclesiastical  control,  have  been  fully  considered 
by  the  Committee  on  Education. 

The  effect  of  the  amendment  submitted  to  your  committee  upon 
the  relation  of  the"  public  to  the  various  private  charitable  organiza- 
tions has  been  more  especially  considered  by  this  committee. 

It  is  understood  that  the  Committee  on  Education  have  formu- 
lated an  amendment  which  is  intended  to  prevent  the  appropriation 
or  payment  of  any  moneys  by  the  State  or  any  civil  division 
thereof  to  any  parochial,  denominational  or  sectarian  school  what- 
ever, without  affecting  charitable  institutions  where  education  is  an 
incidental  element  in  the  general  care  of  its  inmates. 

With  this  determination  of  the  Committee  on  Education  we  are 
unanimously  in  accord.  The  same  unanimity  exists  in  believing 
that  it  would  be  unwise*  to  prevent  the  State  or  its  civil  divisions 


950  REVISED  RECORD.  [Tuesday, 

from  aiding  and  supporting  its  dependent  poor  and  unfortunate 
through  the  instrumentality  of  any  appropriate  agency  or  from 
entering  into  contractile  relations  in  that  behalf  with  private  insti- 
tutions under  whatever  control  the  same  may  be. 

Your  committee  recognizes,  however,  the  necessity  of  providing 
the  most  stringent  measures  by  way  of  proper  supervision  and  full 
control  of  all  such  institutions  against  any  misuse  of  these  relations 
between  the  public,  on  the  one  hand,  and  private  charitable  organiza- 
tions on  the  other. 

Hence  the  proposed  amendment,  which,  if  adopted,  together  with 
that  suggested  by  the  Committee  on  Education,  will  secure  in  its 
full  sense  a  separation  of  church  and  State  in  all  matters,  political 
and  educational,  without,  however,  preventing  the  State  from 
securing  the  services  of  the  magnificent  charitable  organizations  of 
all  denominations  which  have  done  so  much  to  lessen  the  burdens 
of  the  State  and  to  secure  the  economy  and  perfection  which  has 
characterized  the  eleemosynary  work  so  enormous  in  its  extent 
which  has  devolved  upon  this  community  to  perform. 

No  demand  of  the  character  referred  to  for  a  change  in  the 
methods  which  have  prevailed  in  regard  to  the  poor  and  needy 
seems  to  have  come  from  any  of  the  great  host  of  men  and  women 
in  this  State  whose  devotion  to  charitable  work  and  whose  familiari- 
ties with  all  the  details  have  been  the  greatest.  But  the  criticism 
against  prevailing  methods  was  so  widespread,  the  character  of 
those  who  made  them  so  high,  and  the  interest  of  the  people  at 
large  so  great,  that  your  committee  felt  called  upon  to  give  the 
subject  more  than  usual  investigation  and  examination.  Not  con- 
tent with  the  public  hearings  which  were  accorded  to  those  inter- 
ested in  both  sides  of  the  question,  with  conferences  with  members 
of  the  State  Board  of  Charities,  with  the  representatives  of  the 
State  Charities  Aid  Association,  and  with  all  who  might  be  pre- 
sumed to  be  thoroughly  familiar  with  all  the  questions  involved, 
your  committee  entered  upon  a  thorough  investigation  of  the  various 
charitable,  correctional  and  educational  institutions  which  receive 
State  or  local  aid,  of  the  methods  which  prevail  in  respect  to  the 
distribution  of  such  aid,  of  alleged  abuses  in  such  distribution,  vis- 
ited many  of  such  institutions  of  every  grade  and  nature,  those 
under  control  of  the  State,  counties,  cities  and  other  public  manage- 
ment, as  well  as  those  under  private  management,  including  sec- 
tarian institutions  of  almost  every  denomination. 

As  a  result  of  these  investigations,  the  committee  is  unanimously 
of  the  opinion  that  the  public  has  received  adequate  return  for  all 
moneys  paid  to  private  charitable  institutions;  that  the  expenditures 


August  21.]  CONSTITUTIONAL  CONVENTION.  951 

made  have  been,  in  most  instances,  far  less  than  if  the  institutions 
had  been  conducted  by  the  public;  that  the  religious  training  which 
is  insured  for  the  young  by  the  methods  now  pursued  is  of  incal- 
culable benefit;  that  the  care  of  those  -in  private  institutions  is  better 
than  that  received  in  those  under  control  of  public  local  officers, 
and  is  at  least  as  good  and. fully  on  a  par  with  the  institutions, 
fewer  in  number,  directly  under  the  control  of  the  State  itself;  but 
the  public  moneys  expended  under  the  prevailing  methods  are  sup- 
plemented by  the  expenditure  of  enormous  sums  from  private 
sources;  that,  to  a  large  extent,  the  buildings  and  accessories  of 
these  organizations  have  been  supplied  at  private  cost;  and  that  the 
method  upon  the  whole  is  certainly  the  most  economical  that  can  be 
devised,  and  will  be  still  more  economical  when  some  comparatively 
trifling  abuses,  such  as  the  too  long  retention  of  inmates  or  laxity  in 
their  admissions,  shall  have  been  remedied. 

If  the  amendments  proposed  by  the  earnest  people  who  submitted 
them  were  carried  out  to  their  legitimate  conclusion,  and  if  the 
partial  support  from  public  sources  to  orphan  asylums,  foundling 
asylums  and  kindred  institutions  which  are  necessarily  under 
denominational  control,  were  withdrawn,  it  is  to  be  feared  the  State 
itself  or  its  civil  divisions  would  be  called  upon  at  infinitely  greater 
cost  to  endeavor  to  perform  a  service  which  it  could  never  ade- 
quately render  and  which  would  tend  to  deprive  the  orphan,  the 
foundling,  the  sick  and  the  other  unfortunate  dependents  upon 
charity  of  the  advantages  afforded  through  the  aid  of  thousands  of 
volunteers,  many  of  whom  now  devote  their  lives,  without  compen- 
sation, to  co-operation  with  the  State  in  this,  its  noblest,  work, 
inspired  thereto  by  praiseworthy  religious  impulses,  and  which 
bring  to  these  institutions,  not  the  perfunctory  service  which  would 
be  rendered  by  paid  public  officials,  many  of  them  qualified  only 
by  political  service,  but  a  sincere  devotion  of  officers,  directors, 
managers  and  subordinates  engaged  in  their  work  as  a  labor  of  love 
and  not  of  emolument. 

Probably  the  noblest  sectarian  charities  in  the  world  are  hospitals 
in  the  city  of  New  York.  They  are  supported  entirely  by  private 
sectarian  contributions  and  endowments,  but  they  extend  their 
benefits  without  regard  to  race,  creed,  color  or  religion.  In  former 
years  they  occasionally  required  and  received  local  assistance, 
which,  however,  at  present  they  do  not  require  or  receive,  but  the 
occasion  might  arise  at  any  moment  calling  for  the  use  of  these  hos- 
pitals by  the  city  for  public  purposes,  and  the  establishment  of  con- 
tractile relations  between  the  city  and  some  one  or  more  of  these 
institutions.  If  the  prohibitory  amendment  were  adopted  such 


952  REVISED  RECORD.  [Tuesday, 

arrangements  would  become  impossible,  and  the  city  would  be 
deprived  of  what  might  be  an  indispensable  facility  in  its  charitable 
work. 

The  proponents  of  the  amendments  against  which  your  commit- 
tee reports,  in  substance,  point  to  the  Constitutions  of  other  States 
as  establishing  precedent  in  their  favor.  But  the  situation  of  the 
Empire  State,  and  especially  of  the  Empire  city,  is  unique.  We 
are  called  upon  to  render  charitable  work  not  only  for  those  born 
within  the  boundaries  of  the  State,  but  for  hundreds  of  thousands 
coming  to  us  from  every  nation,  from  every  clime,  and  from  every 
other  State.  Should  our  facility  to  continue  the  methods  heretofore 
employed  be  terminated,  it  would  be  impossible  for  us  to  cope  with 
these  burdens. 

These  conclusions  have  been  arrived  at  by  your  committee,  not 
hurriedly,  but  only  after  the  most  patient  examination  of  the  whole 
subject,  both  generally  and  in  its  details;  an  examination,  which, 
while  it  served  in  the  case  of  some  few  of  the  members  of  the  com- 
mittee to  strengthen  existing  impressions,  in  the  case  of  the  majority 
of  the  committee  causes  the  adoption  of  these  opinions,  despite  con- 
trary views  which  had  been  entertained  before  investigation. 

To  properly  respond  to  the  demands  which  charity  makes,  the 
hand  of  the  State  is  not  the  only  requisite;  the  heart  of  the  individual 
must  also  be  made  to  respond.  But  clear  as  is  the  opinion  of  the 
committee  in  this  respect,  it  is  equally  clear  that  these  private  insti- 
tutions which  expended  during  the  fiscal  year  ending  the  3Oth  of 
September,  1893,  nearly  $13,000,000,  of  which  probably  $9,000,000 
were  derived  from  public  sources,  should  be  subject  to  the  most 
thorough  investigation,  supervision  and  control  by  properly  organ- 
ized public  bodies,  the  powers  of  which  extend  even  to  the  with- 
drawal of  all  authority  to  be  the  recipients  of  these  funds  should  any 
abuses  manifest  themselves. 

In  addition  to  this  large  disbursement  nearly  $4,000,000  was 
expended  during  the  same  period  upon  State  institutions  and  over 
$500,000'  by  county  and  city  institutions,  aggregating  in  all  an 
expenditure  for  charity  in  the  State  of  New  York  of  at  least 
$20,000,000.  These  enormous  amounts  are  irrespective  of  large 
private  benefactions,  of  which  no  public  record  is  made.  These 
expenditures  ought  to  be  under  State  surveillance  and  control.  The 
field  covered  by  the  vast  expenditures  referred  to  is  divisible  into 
three  parts,  correction,  lunacy  and  charity,  and  affected  during  the 
year  1893  a  daily  average  of  80,543  individuals,  as  follows: 


August  21.]           CONSTITUTIONAL  CONVENTION.  953 

Insane 18,379 

Idiotic  and  feeble  minded 1,561 

Epileptic 619 

Blind 718 

Deaf 1,414 

Dependent  children 26,359 

Juvenile  offenders  4.935 

Reformatory  prisoners I>713 

Disabled  soldiers  and  sailors 959 

Hospital  patients 5>735 

Aged  and  friendless  persons 8,074 

Ordinary  poor-house  inmates 10,077 


Total 80,543 


To  which  may  be  added  the  inmates  of  prisons,  penitentiaries  and 
jails,  in  which  there  was  a  daily  average  of  some  10,000  persons. 

It  is  important  to  note  as  indicative  of  what  the  future  increase 
in  the  extent  of  this  great  burden  may  be  that  the  average  number 
of  beneficiaries  grew  from  47,000  in  1880  to  80,000  in  1893,  and 
the  expenditure  from  $8,000,000  in  1880  to  $20,000,000  in  1893. 
'  Under  section  10,  article  8  of  the  Constitution,  neither  the  credit 
nor  the  moneys  of  the  State  can  be  given,  loaned  to  or  in  aid  of 
any  association,  corporation  or  private  undertaking,  except  as  far 
as  may  be  proper  for  the  support  and  education  of  the  blind,  deaf, 
and  dumb  and  juvenile  delinquents. 

Under  section  1 1  of  the  article,  counties,  cities,  towns  and  villages 
are  forbidden  to  loan  their  money  or  credit  to  or  in  aid  of  any- 
individual  association  or  corporation,  except  for  the  aid  or  support 
of  its  poor  as  may  be  authorized  by  law. 

Excepting  a  few  institutions  directly  managed  by  the  State,  no 
funds  are  expended  by  it  except  to  institutions  caring  for  the  blind, 
the  deaf  and  dumb  and  juvenile  delinquents. 

The  rest  of  the  80,000  dependents  are  supported  by  cities,  towns 
and  villages  as  authorized  by  the  Legislature,  out  of  funds  raised 
generally  by  taxation  and  from  licenses  and  excise  fees,  and  either 
institutions  managed  by  the  local  authorities,  or  as  is  universally 
the  case  with  orphan  children  and  generally  the  case  with  foundlings, 
by  arrangement  with  private  institutions  upon  a  per  capita  basis, 
which  has  in  no  case  been  found  to  be  excessive. 

Up  to  1875,  orphan  children  were  largely  lodged  in  poor-houses 
throughout  the  State.  But  in  response  to  the  almost  general 
demand  of  the  community,  laws  were  enacted  that  made  it  com- 


954  REVISED  RECORD.  [Tuesday, 

pulsory  upon  the  local  authorities  to  contract  either  with  families 
or  with  orphan  asylums,  with  proper  provisions  for  a  commitment 
of  orphans  to  denominational  orphan  asylums  of  the  religious  faith 
of  the  parents  of  the  orphan,  and  similar  methods  have  prevailed, 
not  so  universally  with  respect  to  foundlings. 

The  attention  of  the  Convention,  as  to  the  deliberate  character 
of  this  arrangement  and  the  necessity  therefor,  the  wisdom  of  the 
course  which  has  been  adopted  and  the  injury  which  would  result 
from  any  change  of  method,  is  called  to  an  admirable  paper  pre- 
pared by  William  P.  Letchworth,  LL.  D.,  Commissioner  of  the 
New  York  State  Board  of  Charities,  read  at  the  national  confer- 
ence of  charities  and  corrections,  held  in  Chicago,  June,  1893,  and 
embodied  in  the  report  of  the  committee  on  the  history  of  child- 
saving  work  of  the  United  States. 

The  charitable  institutions  of  the  State  have  not  been  without 
supervision  and  inspection  of  some  character.  The  existing  State 
Board  of  Charities,  in  1875,  succeeded  the  Board  of  State  Com- 
missioners of  Public  Charity,  created  in  1867,  and  they  were  and 
still  are  authorized  to  visit  and  inspect  any  charitable,  eleemosynary, 
correctional  or  reformatory  institution  in  the  State,  excepting 
prisons,  whether  receiving  State  aid  or  maintained  by  municipali- 
ties or  otherwise.  This  board  now  consists  of  eleven  persons  and 
is  intended  to  be  superseded  by  a  constitutional  board,  to  consist 
at  the  outset  of  the  same  number. 

In  1889  a  commission  of  lunacy,  consisting  of  three  persons,  suc- 
ceeded to  the  single  commissioner,  whose  office  had  been  created 
in  1873.  The  power  of  this  commissioner  extends  to  visiting  and 
supervising  all  institutions  for  the  insane.  The  membership  of  the 
constitutional  board,  which  is  to  succeed  the  present  commission, 
is  intended  to  be  increased  to  five,  three  of  whom  shall  be  the  mem- 
bers of  the  existing  commission. 

The  Superintendent  of  State  Prisons  has,  by  the  existing  Con- 
stitution, duties  that  are  solely  executive,  and  with  them  there  is 
no  design  in  a  proposed  amendment  to  interfere.  The  power 
intended  to  be  conferred  in  respect  to  State  prisons  on  the  Board 
of  Prisons  to  be  created  not  being  of  an  executive  character,  and 
is  to  be  exercised  over  all  institutions  in  which  are  confined  adults 
who  are  charged  with  or  convicted  of  crime,  including  county  jails, 
the  deplorable  condition  of  which  had  been  emphasized  by  the 
prison  association,  but  excluding  the  inmates  of  reformatories,  who 
are  to  be  placed  under  the  jurisdiction  of  the  State  Board  of 
Charities. 

Briefly  then,  a  State  Commission  of  Lunacy  would  have  juris- 


August  21.]  CONSTITUTIONAL  CONVENTION.  955 

diction  over  all  institutions,  public  and  private,  for  the  care  of  the 
insane.  These  include  at  present  nine  State  hospitals,  six  county 
asylums,  seventeen  private  asylums  and  one  hospital  for  the  insane 
criminals,  containing  in  aggregate  a  total  of  18,154  inmates. 

The  State  Board  of  Charities  would  have  supervision  over  seven 
reformatories,  eight  institutions  for  the  deaf,  two  for  the  blind, 
one  for  epileptics,  three  for  idiots,  one  for  Indian  children,  one  for 
soldiers  and  sailors,  fifty-eight  county  poor-houses,  141  orphan 
asylums  and  homes  for  the  friendless,  112  hospitals,  forty-five  dis- 
pensaries, a  population  of  62,154,  together  with  the  supervision  of  a 
number  of  charitable  and  benevolent  societies  not  included  in  the 
above  list. 

This  would  leave  for  the  jurisdiction  of  the  State  Board  of 
Prisons  four  prisons,  six  penitentiaries  and  sixty  county  jails. 

The  proposed  amendment  submitted  by  your  committee  results 
in  part  from  conferences  with  the  representatives  of  the  State  Chari- 
ties Aid  Association  and  the  State  Association  of  New  York,  whose 
vast  experience  in  all  matters  connected  with  State  charities  and 
the  management  of  State  prisons,  has  been  placed  at  the  service 
of  the  committee,  which  has  had  the  benefit  of  many  important  sug- 
gestions from  the  officers  of  these  associations. 

Your  committee  recognizes  the  objection  that  exists  to  the  crea- 
tion of  further  State  officers,  and  is  in  full  accord  with  the  sentiment 
that  their  number  should  not  unnecessarily  be  increased;  but  so 
great  is  the  expenditure  of  public  and  private  moneys  for  the  chari- 
table works  of  the  State,  so  enormous  is  the  responsibility  for  caring 
for  these  dependent  and  criminal  characters,  so  susceptible  of  abuse 
may  be  the  administration  of  the  affairs  of  these  institutions,  so 
much  of  hostile  criticism  has  been  indulged  in,  that  your  committee 
feels  that  it  is  justified  in  urging  the  Convention  to  adopt  the  pro- 
posed amendment  as  the  only  method  of  securing  to  the  State  the 
advantages  which  co-operation  with  private  institutions  afford,  while 
securing  it  against  the  possibility  of  any  injury  while  pursuing  that 
policy. 

EDWARD  LAUTERBACH, 

Chairman. 

The  President  —  The  Secretary  will  read  the  proposed  amend- 
ment accompanying  the  report  of  the  Committee  on  Charities  and 
Charitable  Institutions. 

The  Secretary  read  the  proposed  amendment  of  the  committee  to 
article  5  of  the  Constitution. 

Mr.  I.  S.  Johnson  —  Mr.  President,  it  would  appear  that  this  was 


956  REVISED  RECORD.  [Tuesday, 

a  unanimous  report  of  the  Committee  on  Chanties.  Unexplained 
by  the  report  which  accompanies  it,  it  might  be  misleading.  This 
report  was  agreed  to  upon  the  express  condition  and  the  express 
understanding  that  there  was  to  be  and  was  nothing  in  the  report  of 
the  Committee  on  Education  which  should  suffer  any  appropria- 
tion to  be  made  to  any  institutions  controlled  by  sectarians.  It 
appears  that  the  Committee  on  Education  have  attached  to  their 
report  a  section,  or  a  portion  of  a  section,  which  would  permit,  in 
the  judgment  of  some  members  of  this  committee,  such  appropria- 
tions. It  was  not  in  accordance  with  the  understanding.  It  was  not 
in  accordance  with  the  promise  that  was  made  in  this  room  that 
there  was  nothing  of  the  kind,  and  it  is  for  the  simple  purpose  of 
allowing  the  minority,  if  such  it  be,  to  have  it  understood  that  they 
do  not  agree  to  this  report,  if  it  is  to  be  established  as  a  means  by 
which  appropriations  can  be  made  to  sectarian  institutions. 

Mr.  Lauterbach  —  Mr.  President,  in  order  to  throw  light  on  the 
matter,  it  is  the  understanding  of  the  Committee  on  Charities  that 
the  proposed  amendment  submitted  by  the  Committee  on  Educa- 
tion, if  adopted,  will  operate  to  prevent  the  payment  of  any  money 
by  the  State,  or  any  civil  division  of  the  State,  either  directly  or 
indirectly,  to  any  parochial,  denominational  or  sectarian  schools 
whatever.  It  is  understood  at  the  same  time  that  it  is  the  design  of 
the  Committee  on  Education  not  to  prevent  the  payment  of  moneys 
to  charitable  institutions  which  support,  maintain  and  care  for 
orphans,  if  education  in  those  institutions  is  simply  an  incident  of 
its  general  management.  Whether  the  phraseology  adopted  by  the 
Committee  on  Education,  which,  while  prohibiting  the  payment  of 
moneys  for  educational  purposes,  permits  the  payment  to  institu- 
tions that  shall  be  under  the  care  of  the  State  Board  of  Charities, 
goes  further  than  to  permit  the  payment  of  such  moneys  as  may  be 
necessary  for  the  incidental  education  of  orphans  in  orphan  asylums, 
it  is  not  within  the  understanding  of  all  the  members  of  the  com- 
mittee and  of  every  one  connected  with  it,  and  I  so  understand  it, 
and,  if  there  is  any  reason  why  that  phraseology  should  be  made 
clearer  in  the  amendment  proposed,  not  by  the  Committee  on  Chari- 
ties, but  by  the  Committee  on  Education,  I  think  we  will  all  act  in 
unison  to  accomplish  that  end.  It  is  distinctly  understood  that  in 
agreeing  to  this  report,  with  substantial  unanimity,  I  may  say,  with 
absolute  unanimity,  that  it  was  the  feeling  of  some  members  of  the 
Charities  Committee  that  under  no  circumstances  should  any  of 
the  funds  of  the  State  be  used  for  school  purposes  or  for  educa- 
tional purposes  in  any  sense,  except  as  an  incident  of  general  train- 
ing in  orphans.  I  think  that  explains  it,  Mr.  Johnson. 


August  21.]  CONSTITUTIONAL  CONVENTION.  957 

Mr.  A.  B.  Steele  —  Mr.  President,  that  there  may  be  no  misun- 
derstanding, as  I  understand  the  purport  of  Mr.  Johnson's  remarks, 
or  the  position  of  the  minority,  that  the  unanimity  of  the  report  was 
brought  about  upon  the  understanding  that  the  Educational  Com- 
mittee was  to  report  that  no  part  of  the  common  school  funds  should 
be  used  for  sectarian  or  private  institutions,  I,  for  one,  while 
concurring  in  the  report  upon  that  understanding,  do  not  want  it 
understood  that  this  report  gives  control  to  the  State  Board  of 
Charities  of  all  these  institutions,  and  then  that  they  shall  partici- 
pate in  the  common  school  funds. 

The  President  —  The  Secretary  will  proceed  with  the  call  of  the 
committees. 

Mr.  McKinstry  —  Mr.  President,  in  the  absence  of  the  chairman 
I  would  submit  a  report  from  the  Committee  on  Printing. 

The  President  —  The  Secretary  will  read  the  report  from  the 
Committee  on  Printing. 

The  Secretary  read  the  report,  as  follows : 

Mr.  President  and  Gentlemen  of  the  Convention. — Your  Com- 
mittee on  Printing,  to  which  was  referred  a  resolution  for  printing 
extra  copies  of  the  suffrage  debates,  respectfully  reports : 

We  find  quite  a  number  of  delegates  and  that  number  not  con- 
fined to  those  who  made  speeches  upon  the  subject,  who  would  like 
the  debates  upon  the  question  of  woman  suffrage  compiled  and  in 
convenient  form  for  mailing  to  constituents  who  are  especially 
interested.  Fortunately,  those  debates  were  all  comprised  in  four 
evenings'  proceedings  when  no  other  business  was  transacted.  We 
deem  it  best  to  order  only  a  limited  number  at  this  time.  If  more 
should  be  desired  more  can  be  ordered  hereafter  at  the  same  rate  of 
cost.  Each  of  the  four  evenings'  debates  made  a  form  of  only  ten 
or  twelve  leaves,  and  since  the  type  has  already  been  set  for  the 
regular  record,  the  cost  of  this  order  will  be  insignificant.  We 
recommend  the  adoption  of  the  following: 

R.  1 80. —  "  Resolved,  That  one  thousand  copies  of  the  debates  of 
Wednesday  evening,  August  8th;  Thursday  evening,  August  Qth; 
Tuesday  evening,  August  I4th  and  Wednesday  evening,  August 
1 5th,  be  printed,  and  each  four  numbers,  comprising  four  evenings' 
debates,  be  stitched  together  with  paper  cover  and  these  bound 
copies  be  proportioned  among  the  delegates  desiring  them  by  as 
nearly  equal  division  as  is  practicable. 

The  President  put  the  question  on  the  adoption  of  the  resolution, 
and  it  was  determined  in  the  affirmative. 


958  REVISED  RECORD.  [Tuesday, 

Mr.  Goodelle,  from  the  Committee  on  Suffrage,  to  which  was 
referred  the  proposed  amendment  introduced  by  Mr.  Roche  (intro- 
ductory No.  1 86),  entitled  "  Proposed  constitutional  amendment,  to 
amend  section  4  of  article  2,  to  designate  the  courts  in  which  per- 
sons may  be  naturalized,  and  providing  for  the  holding  of  such 
courts  at  stated  times,'1  begged  to  be  discharged  from  the  further 
consideration  of  said  amendment  and  recommended  that  it  be 
referred  to  the  Committee  on  Judiciary. 

The  President  put  the  question  on  agreeing  with  the  report  of 
the  Suffrage  Committee,  and  it  was  determined  in  the  affirmative. 

The  President  —  The  special  committees  are  expected  to  report 
to-day. 

Mr.  Hottenroth  —  Mr.  President,  in  connection  with  the  report 
of  the  Committee  on  Canals,  in  reference  to  several  amendments 
qf  that  committee,  I  desire  to  submit  a  minority  report.  Two  of 
those  members  are  not  present  to-day,  and,  as  I  understand  it,  a 
minority  report  may  be  submitted  at  any  time. 

The  President  —  A  minority  report  may  be  submitted  at  any  time 
before  the  matter  affected  is  disposed  of. 

Mr.  Smith  —  Mr.  President,  I  am  informed  that  this  is  the  last 
day  for  committees  to  report  without  leave  of  the  Convention. 

The  President  —  Such  ,|s  the  order  of  the  Convention. 

Mr.  Smith  —  I  would  like  to  ask  for  an  extension  of  one  week's 
time  for  the  Committee  on  Preamble  and  Bill  of  Rights  to  report 
upon  two  proposed  amendments  (No.  234  and  No.  376,  introduc- 
tory). I  have  spoken  to  the  chairman  of  the  committee  and  this 
is  agreeable  to  his  wishes. 

The  President  —  You  are  not  a  member  of  that  committee? 

Mr.  Smith  —  I  am  not  a  member  of  that  committee.     I  proposed 
these  amendments.     They  have  not  been  reported  or  acted  upon. 
The  President  —  You  make  the  motion? 
Mr.  Smith  —  I  make  the  motion. 
The  President  —  How  long  a  time? 
Mr.  Smith  —  One  week. 

The  President  —  Mr.  Smith  moves  that  the  time  of  the  Com- 
mittee on  Preamble  and  Bill  of  Rights,  to  report  on  proposed 
amendments  Nos.  234  and  376,  be  extended  one  week. 

Mr.  Root  —  Mr.  President,  would  it  not  be  appropriate  for  the 
Committee  on  Preamble  and  Bill  of  Rights  to  be  consulted  as  to 
whether  they  wish  more  time? 


August  21.]  CONSTITUTIONAL  CONVENTION.  959 

The  President  —  They  are  present. 

Mr.  Hottenroth  —  Mr.  President,  I  ask  to  amend  the  motion  by 
also  including  amendment  No.  352. 

Mr.  Francis  —  Mr.  President,  I  have  assented  to  the  suggestion 
of  Mr.  Smith  that  there  may  be  consideration  of  his  proposed 
amendments,  and  suggested  to  him  that  a  motion  would  be  neces- 
sary in  order  that  we  might  entertain  and  report  upon  them. 

The  President  —  This  is  a  matter  which  may  be  established  as  a 
precedent.  Gentlemen  will  please  give  their  attention  to  it. 
Mr.  Smith  and  Mr.  Hottenroth  also  desire  that  the  time  of  the  Com- 
mittee on  Preamble  and  Bill  of  Rights,  to  report  on  three  amend- 
ments proposed  by  them,  and  referred  to  that  committee  and  not 
yet  acted  upon  by  it,  be  extended  one  week. 

The  President  put  the  question,  and  it  was  determined  in  the 
affirmative. 

Mr.  Holcomb  —  Mr.  President,  I  would  like  to  ask  that 
Mr.  Tekulsky  have  leave  of  absence  until  he  shall  be  able  to  return. 
He  handed  me  a  telegram  last  night  informing  him  that  his  wife 
was  ill  and  he  was  obliged  to  go  to  New  York.  I  have  the  telegram 
in  my  hand. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Tekulsky,  and  it  was  determined  in  the  affirmative. 

Mr.  McClure  —  Mr.  President,  by  reason  of  the  lateness  of  the 
day  when  the  suggestion  for  the  appointment  of  the  Committee  oh 
Forestry  was  made  in  this  Convention,  and  the  committee  actually 
appointed,  we  have  been  able  to  hold  but  one  meeting  and  one 
public  hearing.  So  many  people  interested  in  the  matter  desire 
to  appear  before  the  committee,  and  there  was  so  much  difficulty  in 
getting  them  together  at  an  early  day  by  reason  of  summer  vaca- 
tions, that  the  committee  thought  it  wise  to  have  another  meeting 
on  Wednesday.  I,  therefore,  desire  to  ask  that  the  committee  be 
allowed  until  Thursday  on  which  to  report. 

The  President  put  the  question  on  granting  further  time  to  the 
committee,  and  it  was  determined  in  the  affirmative. 

The  President  —  The  Convention  will  now  proceed  in  Committee 
of  the  Whole  on  the  judiciary  article.  -  , 

Mr.  Root  —  Mr.  President,  before  doing  that  I  ask  leave  to  bring 
up  the  report  of  the  Committee  on  Rules,  which  was  made  on  Sat- 
urday and  laid  over. 

Mr.  Osborn  —  Mr.  President,  I  heard  the  name  of  the  Select 
Committee  on  Civil  Service  just  now.  That  committee  has  agreed 


960  REVISED  RECORD.  [Tuesday, 

upon  its  amendment,  and  it  should  be  presented  to  the  Convention, 
but  in  the  absence  of  Mr.  Gilbert,  the  chairman,  I  ask  that  the  time 
of  the  committee  be  extended  until  the  return  of  Mr.  Gilbert. 

The  President  put  the  question  on  granting  further  time  to  the 
Select  Committee  on  Civil  Service,  and  it  was  determined  in  the 
affirmative. 

Mr.  Davies  —  Mr.  President,  I  was  absent  from  the  chamber  when 
the  Committee  on  Railroads  was  called,  and  I  have  a  final  report 
from  that  committee.  I  have  one  other  report  on  an  amendment, 
which  I  have  been  requested  by  the  introducer  to  hold.  I  now 
present  the  final  report  of  the  Railroad  Committee. 

The  President — The  Secretary  will  read  the  report. 

The  Secretary  read  the  report  as  follows : 
To  the  Honorable  the  Constitutional  Convention: 

The  Committee  on  Railroads,  Transportation  and  Electrical 
Transmission  begs  leave  to  report  that  they  have  considered  all 
propositions  by  way  of  proposed  amendments  and  resolutions 
referred  to  them',  and  have  passed  on  the  same,  and  there  is  no  fur- 
ther business  before  the  committee. 

All  of  which  is  respectfully  submitted. 

The  President  —  Mr.  Root,  from  the  Committee  on  Rules,  has 
something  to  report. 

•Mr.  Root  —  I  move  the  adoption  of  the  resolution  reported  by 
the  Committee  on  Rules  to  amend  rule  7. 

The  President  —  The  Secretary  will  read  the  amendment  pro- 
posed by  the  Committee  on  Rules  to  rule  7. 

The  Secretary  read  the  amendment  as  follows: 

"  To  amend  rule  7,  by  inserting  after  the  word  '  request,'  the  fol- 
lowing: "  Or  any  member  may  explain  his  vote  for  not  exceeding 
three  minutes." 

The  President  —  The  object  of  this  amendment  is  simply  to 
relieve  gentlemen  from  the  now  obsolete  necessity  of  asking  to  be 
excused  from  voting,  when,  in  fact,  they  do  not  wish  to  be  excused, 
but  merely  wish  to  explain  their  vote. 

Mr.  Veeder  —  This  amendment  comes  after  the  word  "  request," 
in  which  line? 

The  Secretary  —  The  amendment  does  not  state. 
Mr.  Veeder  —  The  word  "  request "  occurs  twice  in  rule  7. 
Mr.  Root  —  It  is  after  the  "  request "  in  the  fifth  line. 


August  21.]  CONSTITUTIONAL  CONVENTION.  961 

The  President  —  Will  Mr.  Root  please  explain  where  this  amend- 
ment comes  in  —  whether  after  the  word  "  request,"  in  the  third 
line,  or  after  the  word  "  request,"  in  the  fifth  line? 

Mr.  Root  —  I  have  here  Document  No.  15,  and  this  amendment 
comes  after  the  word  "  request,"  in  the  fifth  line,  so  that  the  rule,  as 
amended,  will  read: 

"  Any  member  requesting  to  be  excused  from  voting  may  make, 
when  his  name  is  called,  a  brief  statement  of  the  reasons  for  making 
such  request,  not  exceeding  three  minutes  in  time,  and  the  Conven- 
tion, without  debate,  shall  decide  if  it  will  grant  such  request;  or, 
any  member  may  explain  his  vote  for  not  exceeding  three  minutes." 

The  President  —  Then  the  amendment  comes  in  after  the  word 
"  request,"  in  the  fifth  line?  The  question  is  on  the  adoption  of  the 
amendment. 

The  President  put  the  question  on  the  adoption  of  the  resolution, 
as  moved  by  Mr.  Root,  and  it  was  determined  in  the  affirmative. 

Mr.  Root  —  I  move  the  adoption  of  the  resolution  reported  by 
the  Committee  on  Rules  to  amend  rule  29,  by  striking  out  the  last 
sentence. 

The  President  —  The  Secretary  will  read  the  proposed  amend- 
ment to  rule  29. 

The  Secretary  read  as  follows: 

"  Strike  out  the  last  sentence  of  rule  29." 

Mr.  W.  H.  Steele  —  I  take  it,  Mr.  President,  that  it  is  the  object 
of  the  chairman  of  the  Committee  on  Rules,  by  this  amendment,  to- 
make  that  rule  so  that  every  member  of  the  Convention  will  clearly 
understand  its  purport.  There  has  been  a  serious  misunderstand- 
ing, not  only  by  the  Convention,  but  also  by  the  President  of  the 
Convention,  in  reference  to  the  rights  of  members,  under  the  opera- 
tion of  that  rule.  It  is  the  blindest  of  all  the  rules.  It  leaves  the 
question  where  it  is  natural  and  often  necessary  for  any  one  to  ask: 
"  What  next?"  It  is  impossible  for  any  member  of  the  Convention 
to  understand  his  rights  or  privileges,  without  referring  to  authority 
and  precedents,  unless  he  has  had  a  fair  parliamentary  practice  or 
experience.  I,  therefore,  offer  this  amendment,  which  will  require 
adding  but  two  more  lines  to  the  rule,  -and  will  show  each  member 
of  the  Convention  plainly  and  concisely  just  what  his  rights  arc, 
when  he  is  to  be  governed  by  that  rule  of  the  Convention. 

The  President  —  The  Secretary  will  read  Mr.  Steele's  proposed 
amendment  to  rule  29. 
61 


962  REVISED  RECORD.  [Tuesday, 

The  Secretary  read  as  follows: 

"  Strike  out  the  last  paragraph,  and  in  place  thereof  add  as  fol- 
lows: 'This  question  may  be  superseded  by  the  motions  to  lay  on  the 
table,  to  commit  or  recommit,  to  postpone  or  to  amend.  If  leave 
to  sit  again  be  refused,  the  question  is  lost.' " 

Mr.  Veeder  —  Do  I  understand  the  report  of  the  Committee  on 
Rules  to  be  to  strike  out  entirely  or  abrogate  the  last  sentence  of 
rule  29? 

The  President  —  That  is  the  report  of  the  Committee  on  Rules. 

Mr.  Veeder  —  I  understood  that  the  amendment  proposed  was 
that  if  leave  be  refused,  the  effect  is  to  reject  the  proposed  constitu- 
tional amendment? 

The  President  —  The  actual  amendment  offered  by  the  Com- 
mittee on  Rules  is  to  strike  out  the  last  clause  entirely. 

Mr.  Veeder  —  The  result  of  that  is  that  we  are  left  entirely  with- 
out any  determination  of  the  condition  of  affairs  in  the  event  it  is 
refused.  By  the  proposed  amendment  of  the  Committee  on  Rules 
it  will  be  left  then  to  the  decision  of  the  Chair  what  is  the  parlia- 
mentary practice  in  such  case.  I  submit  that  the  amendment  pro- 
posed by  Mr.  Steele,  as  I  heard  it,  and  as  I  recollect  it,  is  in 
conformity  with  parliamentary  law.  But  that  there  may  be  no 
mistake  as  to  what  is  parliamentary  law  or  practice,  I  submit  that 
it  is  better  to  incorporate  it  in  that  rule  and  have  an  interpretation 
there  of  that  parliamentary  law,  as  to  what  motions  will  properly 
follow  in  the  event  that  the  Convention  refuses  leave  to  the  Com- 
mittee of  the  Whole  to  sit  again.  We  were  in  this  difficulty  the 
other  day.  Then  the  President  held  that  a  motion  to  reconsider 
was  the  only  motion  in  order. 

The  President  —  He  probably  made  a  mistake. 

Mr.  Veeder  —  I  thought  so  at  the  time,  although  the  President 
was  a  little  ungracious  in  replying  to  me.  However,  to  avoid  mis- 
takes in  interpreting  the  rule  in  the  future,  let  us  declare  in  the  rule 
itself  what  procedure  can  follow  after  the  Convention  has  refused 
leave  to  sit  again.  Therefore,  I  am  decidedly  in  favor  of  the  propo- 
sition of  Mr.  Steele. 

Mr.  Vedder  —  I  understand,  by  striking  out  the  last  sentence  of 
rule  29,  that  it  will  leave  the  question  as  it  always  has  been  in 
parliamentary  law.  If  a  motion  for  leave  to  sit  again,  or  if  a  report 
asking  leave  to  sit  again  is  defeated,  the  effect  of  that  is  to  affect 
the  question  under  consideration.  That  always  has  been  the  rule, 
and  by  striking  out  this  sentence  it  will  remain  the  rule;  and  there 


August  21.]  CONSTITUTIONAL  CONVENTION.  963 

can  be  no  doubt  in  the  minds  of  anybody  then,  with  regard  to  its 
effect.  Now,  the  amendment  which  the  gentleman  from  Oswego 
(Mr.  Steele)  desires  to  have  incorporated  leaves  it,  as  I  understand, 
parliamentary  law,  as  it  now  is.  He  simply  wishes  to  put  in  black 
and  white  plainly  before  the  Convention  just  what  they  may  do, 
if  those  words  are  not  in  the  rule.  It  is  a  thing  very  frequently 
done  in  legislative  bodies,  in  order,  when  in  Committee  of  the 
Whole,  to  shut  off  debate,  to  move  progress  of  the  bill  for  the  pur- 
pose that  when  it  gets  before  the  body  itself  a  motion  may  be  made 
to  disagree  with  the  report  of  the  committee,  if  it  be  for  leave  to  sit 
again,  order  it  to  a  third  reading,  send  it  back  to  the  committee, 
or  to  do  anything  with  it  that  you  might  do  at  any  time  when  the 
bill  or  proposition  is  before  the  Convention  itself.  Those  words  in 
the  last  sentence  of  rule  29  have  been  confusing  all  the  way  through. 
It  is  the  only  rule,  I  believe,  which  the  Convention  could  not  fully 
understand,  because  it  attempted  to  qualify  parliamentary  law, 
which  is  simply  the  perfection  of  reason  in  governing  parliamentary 
bodies.  Now,  whether  Mr.  Steele  has  got  in  his  amendment  all  that 
might  be  done,  if  it  were  not  in  at  all,  I  do  not  know,  because  so 
many  different  things  can  be  done  by  the  Convention  upon  the 
report  of  its  Committee  of  the  Whole,  as  well  as  of  any  other  com- 
mittee. It  might  be  well,  if  it  has  ever  been  in,  to  have  it  put  there 
as  a  rule,  so  that  you  could  read  and  understand  it,  and  know  pre- 
cisely at  the  moment  what  would  be  the  effect  if  his  amendment 
does  not  include  all  that  may  be  done  under  parliamentary  law  now. 
I  do  not  know  whether  it  does  or  not. 

The  President  —  The  Chair  will  state  that  if  it  were  put  in  the 
form  that  Mr.  Steele  proposes,  by  specifying  certain  things  which 
can  be  done,  it  would  preclude  the  exclusion  of  others. 

Mr.  Vedder  —  Yes;  it  would  preclude  the  exclusion  of  others. 

Mr.  W.  H.  Steele  —  I  have  inserted  in  that  amendment  every 
motion  given  in  any  parliamentary  work,  of  which  I  have  any 
knowledge,  and  liable  to  be  used  in  this  Convention,  which  is  per- 
mitted to  supersede  the  question  of  granting  or  refusing  leave  to  sit 
again.  The  object  of  these  motions  is  for  this  purpose;  if,  in  Com- 
mittee of  the  Whole,  as  is  often  the  case,  a  multitude  of  antagonistic 
amendments  are  offered,  and  the  party  who  has  the  bill  or  proposi- 
tion in  charge  desires  to  stop  the  wrangling,  and  to  get  it  back  to 
the  standing  or  special  committee  for  amendment,  he  has  no  power 
in  Committee  of  the  Whole  to  do  so,  but  by  asking  leave  to  sit 
again,  by  which,  if  granted,  it  is  brought  back  into  the  Convention; 
and  then,  before  the  Speaker  of  the  House,  or  the  President  of  this 


964  REVISED  RECORD.  [Tuesday, 

Convention  puts  the  question  of  granting  leave  to  sit  again,  he  has 
the  right  to  ask  the  Convention  to  lay  it  upon  the  table.  That  is 
the  first  proposition.  That  is  undebatable.  That  gives  him  the 
chance  to  consult  with  members  of  the  Convention,  and  to  do  what- 
ever he  sees  fit  to  perfect  his  proposition.  He  also  has  the  right 
to  ask  to  have  it  committed  to  a  special  committee.  He  also  may 
ask  to  have  it  recommitted  to  the  committee  from  which  it  came. 
He  has  the  right  also  to  ask  to  have  it  postponed,  or  he  may  ask 
to  have  it  amended.  Those  are  the  five  privileged  motions  which 
are  allowable  before  the  question  of  leave  to  sit  again  is  put  to  the 
Convention.  Now,  following  out  the  regular  legislative  law,  if 
leave  to  sit  again  be  refused,  the  proposition  is  lost.  I  should  have 
added  one  more  motion  to  that  list,  in  order  to  make  it  plain,  posi- 
tive and  absolute  —  and  that  is  the  right  to  have  the  final  vote  recon- 
sidered, as  on  any  other  vote.  If  leave  to  sit  again  is  refused,  the 
question  has  no  place  upon  general  orders,  and,  in  effect,  has  no 
place  in  the  Convention.  It  has  been  decided  and  acted  upon  by 
the  Legislatures  of  this  State  for  many  years,  that  a  proposition  so 
lost  can  only  be  taken  up  and  revived  again  by  reconsidering  the 
vote  refusing  leave.  That  is  a  motion  allowable  on  nearly  all 
propositions,  and,  therefore,  I  thought  it  was  not  necessary  to  add 
to  it  this  rule.  I  think  the  amendment  I  have  offered  is  a  very 
material  part  of  the  rule,  because  every  member  of  the  Convention 
will  know  precisely  under  that  rule  just  what  he  can  do  with  a  propo- 
sition, and  just  what  he  is  prohibited  from  doing. 

Mr.  Root  —  I  did  not  hear  the  gentleman  in  his  enumeration 
mention  the  motion  to  discharge  the  Committee  of  the  Whole  and 
order  the  bill  to  a  third  reading. 

Mr.  W.  H.  Steele  —  That  is  something  that  should  be  very  rarely 
done,  if  ever,  in  a  Convention  of  this  kind.  It  is  considered  "  sharp 
practice  in  the  Legislature 

Mr.  Root  —  But  it  is  the  very  way  by  which  the  Convention,  if 
it  wishes  to  adopt  the  amendment,  may  adopt  it  —  by  just  taking 
it  out  of  the  incubus  of  a  great  number  of  amendments  which  the 
Convention  does  not  wish  to  spend  time  in  considering  separately. 
That  illustrates  the  difficulties  of  attempting  to  condense  into  a 
rule,  which  we  are  to  adopt  here,  the  whole  of  any  branch  of  par- 
liamentary law.  For  that  reason  the  committee  thought  it  was 
better  to  simply  strike  out  this  clause  which  interferes  with  the 
application  of  ordinary  parliamentary  law  and  leave  the  result  of 
the  report  of  the  committee  to  the  operation  of  that  law.  The  rule 
which  is  laid  down  in  Croswell's  Manual  is  that  "  if  the  committee 


August  21.]  CONSTITUTIONAL  CONVENTION.  965 

report  progress  and  ask  leave  to  sit  again,  the  question  of  granting 
leave  may  be  superseded  by  a  motion  to  discharge  the  Committee 
of  the  Whole  and  to  order  the  bill  to  a  third  reading,  or  to  discharge 
and  commit,  or  to  lay  on  the  table,  or  to  postpone,  or  to  grant  leave 
to  sit  again,  and  make  .the  bill  a  special  order.  If  leave  to  sit  again 
be  refused,  the  bill,  having  no  place  in  any  order  of  business,  or  on 
the  table,  is  beyond  reach  and  virtually  lost,  unless  revived  under 
a  motion  to  reconsider."  I  understand  that  if  this  clause  is  stricken 
out  from  rule  29,  and  we  are  left  to  the  ordinary  working  of  par- 
liamentary law,  the  President  of  the  Convention  will  rule  that  this 
declaration  of  law  in  Croswell's  Manual  is  the  law  of  this  Conven- 
tion; and,  unless  the  Convention  overrules  that  ruling,  that  will  be 
the  law  for  the  Convention,  and  we  will  not  have  tied  our  hands 
by  endeavoring  to  state  the  law,  so  that  we  will  exclude  the  applica- 
tion of  general  rules,  if  any  new  or  unforeseen  situation  arises. 

Mr.  Veeder  —  What  authority  has  the  gentleman  from  New  York 
(Mr.  Root)  to  tell  us  how  the  President  of  the  Convention  is  going 
to  rule? 

Mr.  Root  —  The  gentleman  from  New  York  has  authority  to 
state  to  this  Convention  that  that  is  what  he  understands,  and  that 
is  all  that  he  is  undertaking  to  state. 

The  President  —  The  Chair  will  state  that  it  will  endeavor  to 
administer  the  rules  as  he  understands  them,  and  to  the  best  of 
his  capacity. 

Mr.  Veeder  —  I  am  quite  sure  of  that,  and  I  am  quite  sure  that 
the  Chair  has  not,  in  advance,  advised  Mr.  Root  how  he  will  rule 
on  any  particular  proposition;  and  I  fail  to  understand  how  the 
gentleman  from  New  York  can  have  any  such  understanding,  as 
he  states,  without  some  information  on  the  subject. 

Mr.  Root  —  Mr.  President 

Mr.  Veeder  —  The  gentleman  from  New  York  declined  to  allow 
me  to  interrupt  him,  and  I  desire  to  extend  to  him  the  same  courtesy 
which  he  extended  to  me.  Mr.  President,  I  am  perfectly  well  satis- 
fied with  either  position  the  Convention  may  take  on  this  question, 
leaving  it  to  the  Chair  to  interpret  the  parliamentary  law  or  estab- 
lish it  by  positive  rule.  That  will  do  very  well  in  this  instance,  but, 
if  there  is  anything  more  uncertain  in  this  life  than  the  rulings  of 
the  presiding  officer  of  a  parliamentary  body,  I  do  not  know  it.  If 
the  President  will  guarantee  that  he  will  occupy  the  chair  during 
every  session  of  the  Convention  until  it  finally  adjourns,  I  am  per- 
fectly willing  that  such  a  disposition  shall  be  made  of  the  matter. 
But,  if  it  is  to  be  left  to  other  officers,  or  to  parties  occupying  the 


966  REVISED  RECORD.  [Tuesday, 

chair  at  different  times,  we  may  get  into  confusion.  We  may  not  all 
agree.  For  that  reason  I  think  that  the  adoption  of  the  suggested 
amendment  is  decidedly  better. 

The  President  —  Does  the  gentleman  desire  that  guarantee  in 
writing? 

Mr.  Veeder —  No,  sir;  there  would  be  no  consideration  for  it. 

Mr.  Dickey  —  I  think  we  have  taken  time  enough  for  the  dis- 
cussion of  the  rule,  and  I  move  the  previous  question. 

The  President  put  the  question:  Shall  the  main  question  be  now 
put,  and  it  was  determined  in  the  affirmative. 

The  President  then  put  the  question  on  the  adoption  of  the 
amendment  offered  by  Mr.  Steele,  and  it  was  determined  in  the 
negative. 

The  President  put  the  question  on  the  adoption  of  the  amend- 
ment to  rule  29,  submitted  by  the  committee,  and  it  was  determined 
in  the  affirmative. 

Mr.  Cornwell  —  I  have  received  a  telegram  from  home  requiring 
my  immediate  attention,  and  I  ask  leave  of  absence  to-morrow. 

The  President  put  the  question  on  the  request  of  Mr.  Cornwell 
to  be  excused  from  attendance  to-morrow,  and  he  was  so  excused. 

Mr.  Putnam  —  I  understand  that  the  Convention  excused  me 
from  attending  to-day  on  account  of  illness.  In  explanation  of  that, 
and  at  the  same  time  thanking  the  Convention  for  their  courteous 
action,  I  wish  to  state  that  yesterday  I  sent  a  telegram  to  Mr.  Sulli- 
van, my  colleague,  stating  to  him  that  I  was  ill  and  unable  to  attend 
yesterday.  But,  as  I  am  able  to  attend  to-day,  I  ask  that  the  Con- 
vention accept  my  presence. 

The  President  —  Those  in  favor  of  revoking  the  leave  of  absence 
given  to  Mr.  Putnam  for  to-day  and  permitting  him  to  sit,  will  say 
aye;  opposed,  no.  It  is  carried. 

Mr.  Johnson  presented  the  report  of  the  Committee  on  Cities  on 
Franchises. 

The  President  —  The  Committee  of  the  Whole  will  now  proceed 
with  the  judiciary  article,  and  Mr.  Acker  will  take  the  chair. 

The  House  resolved  itself  into  Committee  of  the  Whole,  with 
Mr.  Acker  in  the  chair. 

The  Chairman  —  Are  there  any  further  amendments  to  sec- 
tion 4?  The  Chair  hears  no  further  propositions,  and  the  Secretary 
will  read  section  5. 


August  2i.]  CONSTITUTIONAL  CONVENTION.  967 

The  Secretary  then  read  section  5  as  follows: 

"  Sec.  5.  The  Superior  Court  of  the  city  of  New  York,  the  Court 
of  Common  Pleas  for  the  city  and  county  of  New  York,  the  Superior 
Court  of  Buffalo  and  the  City  Court  of  Brooklyn  are  abolished 
from  and  after  the  ist  day  of  January,  1896,  and  thereupon  the  seals, 
records,  papers  and  documents  of  or  belonging  to  such  courts  shall 
be  deposited  in  the  offices  of  the  clerks  of  the  several  counties  in 
which  said  courts  now  exist,  and  all  actions  and  proceedings  then 
pending  in  such  courts  shall  be  transferred  to  the  Supreme  Court 
for  hearing  and  determination.  The  judges  of  said  courts  in  office 
on  the  ist  day  of  January,  1896,  shall,  for  the  remander  of  the  terms 
for  which  they  were  elected  or  appointed,  be  justices  of  the  Supreme 
Court;  but  they  shall  sit  only  in  the  counties  in  which  they  were 
elected  or  appointed.  Their  salaries  shall  be  paid  by  the  said 
counties,  respectively,  and  shall  be  the  same  as  the  salaries  of  the 
other  justices  of  the  Supreme  Court  residing  in  the  same  counties. 
Their  successors  shall  be  elected  as  justices  of  the  Supreme  Court 
by  the  electors  of  the  judicial  districts  in  which  they  respectively 
reside. 

"  The  jurisdiction  now  exercised  by  the  several  courts  hereby 
abolished  shall  be  vested  in  the  Supreme  Court.  Appeals  from 
inferior  and  local  courts  now  heard  in  the  Court  of  Common  Pleas 
for  the  city  and  county  of  New  York  and  the  Superior  Court  of 
Buffalo,  shall  be  heard  in  the  Supreme  Court  in  such  manner  and 
by  such  justice  or  justices  as  the  Appellate  Division  in  the  respective 
departments,  which  include  New  York  and  Buffalo,  shall  direct, 
unless  otherwise  provided  by  the  Legislature." 

The  Chairman  —  Are  there  any  amendments  to  section  5? 

Mr.  Platzek  —  I  offer  an  amendment. 

The  Secretary  read  the  following  amendment: 
"  To  amend  section  5  by  inserting  after  the  word  '  court/  in  line 
22,  page  5,  the  words  '  except  the  City  Court  of  New  York.'  " 

Mr.  Woodward  —  I  wish,  in  line  21,  page  5,  to  insert  an  amend- 
ment preventing  the  justices  from  hearing  a  case  after  they  have 
once  passed  upon  it,  and  it  has  been  sent  back  for  a  new  trial. 

The  Chairman  —  Will  the  gentleman  please  give  way  until  the 
question  now  before  the  committee  is  disposed  of? 

Mr.  Woodward  —  I  will. 

Mr.  Platzek  —  The  object  of  the  amendment  is  to  except  appeals 
which  were  made  from  the  City  Courts  from  being  treated  in  the 
same  manner  as  appeals  from  a  District  Court  in  the  city  of  New 


968  REVISED  RECORD.  [Tuesday, 

York  and  other  smaller  and  inferior  courts.  The  City  Court  of 
New  York,  if  the  statutes  were  examined,  is  probably  one  of  the 
oldest  courts  in  the  State,  the  statutory  enactments  beginning  in 
1797  and  coming  down  to  1870,  so  that  we  are  not  speaking  about 
anything  that  is  new,  but  about  something  that  is  ancient.  The  City 
Court  has  a  jurisdiction  of  $2,000,  and  in  actions  for  tort  its  juris- 
diction is  unlimited.  The  labor  performed  in  the  City  Court  of 
New  York  is,  probably,  not  entirely  understood  by  the  lawyers  who 
are  not  residents  of  that  city,  and  that  court  ought  not  to  be  classed 
-with  the  smaller  and  inferior  courts  upon  questions  upon  appeal. 
•Under  section  5,  if  it  is  left  as  it  is,  the  appeals  from  the  City  Court 
•of  New  York  may  be  heard  by  one  justice  assigned  by  the  Appellate 
Division  of  the  Supreme  Court.  The  City  Court  has  a  General 
'Term  of  its  own,  composed  of  three  of  its  judges,  where  their  errors 
-are  largely  corrected,  and  their  decisions  are  usually  sound. 

Mr.  Deady  —  I  would  like  to  ask  Mr.  Platzek  a  question,  whether 
Ihe  understands  the  full  import  of  this  amendment  which  he  now 
seeks  to  amend?  It  does  not  provide  for  an  appeal  to  the  Supreme 
Court  from  a  judgment  in  the  City  Court,  but  from  a  judgment 
•of  the  General  Term  of  the  City  Court. 

Mr.  Platzek  —  That  is  my  complaint,  and  I  am  trying  to  explain 
it.  The  City  Court,  as  I  have  stated,  has  its  own  General  Term  of 
three  judges,  and  heretofore  an  appeal  was  taken,  and  now  an  appeal 
is  taken  from  the  General  Term  of  the  City  Court  to  the  General 
Term  of  the  Court  of  Common  Pleas,  where  three  judges  sit  in 
review;  and,  so  far  as  the  appeal  is  concerned,  the  Common  Pleas 
virtually  is  the  Court  of  Appeal  for  the  City  Court  General  Term, 
and  you  cannot  appeal,  except  by  the  assent  of  the  General  Term  of 
the  Common  Pleas.  Now,  the  Common  Pleas  goes  out  of  exist- 
ence. That  court  is  merged  into  the  Supreme  Court,  and  under  the 
provisions  of  the  previous  section,  section  2,  already  passed  upon 
liere,  the  Appellate  Court  of  the  Common  Pleas  goes  to  the  Supreme 
Court.  The  provision  as  to  these  inferior  courts,  in  which 
the  City  Court  of  New  York  is  included,  unless  excepted  by  my 
amendment,  is  that  the  Appellate  Division  can  assign  one  judge  of 
the  Supreme  Court  to  sit  in  review  of  the  appellate  devisions  of  the 
City  Court  of  New  York.  That,  I  consider,  an  insufficient  safeguard 
for  a  court  of  such  important  jurisdiction. 

Mr.  C.  B.  McLaughlin — Will  the  gentleman  give  way  to  permit 
me  to  ask  him  a  question?  In  every  county  of  this  State,  outside  of 
New  York,  Kings  and  one  or  two  others  containing  larger  cities, 
how  are  appeals  taken,  to  what  court  from  the  inferior  courts? 


August  21.]  CONSTITUTIONAL  CONVENTION.  969 

Mr.  Platzek  —  They  are  taken  to  the  Supreme  Court. 

Mr.  C.  B.  McLaughlin  —  They  are  taken  to  the  county  judge, 
one  person  sitting  in  review.  Now,  why  should  there  be  an  excep- 
tion made  in  the  county  of  New  York? 

Mr.  Platzek  —  For  the  reason  that  the  business  is  larger  and  the 
amounts  involved  are  larger  and  the  causes  are  of  more  importance. 
Recently  a  verdict  was  rendered  in  that  court  for  $25,000,  which 
was  sustained  by  its  General  Term  and  afterwards  reversed  on 
appeal. 

Mr.  C.  B.  McLaughlin  —  Will  the  gentleman  permit  me. another 
question?  Does  he  mean  to  say  that  the  causes  litigated  in  the  City 
Court  of  New  York  are  more  than  all  the  other  inferior  courts  of 
this  State? 

Mr.  Platzek  —  Not  if  you  take  them  all  in  an  aggregate,  but  in 
answer  to  that  I  will  merely  make  this  statement,  that  the  number  of 
notes  of  issue  filed  in  the  City  Court  of  New  York  in  1893  was  2,862; 
the  number  of  judgments  that  were  entered  in  the  clerk's  office  in 
the  city  and  county  of  New  York  for  1893  was  10,722.  It  is  the 
people's  court,  it  is  the  tribunal  to  which  the  people  resort,  because 
a  summons  is  returnable  in  six  days  and  a  trial  is  reached  sooner 
than  in  the  Supreme  Court,  and,  if  people  resort  to  that  court,  and 
they  have  a  right  to  an  appeal  within  that  court  to  a  General  Term 
and  they  desire  to  go  further  on  appeal,  I  say  that  the  litigant 
ought  to  have  the  opportunity  to  appeal  to  the  Appellate  Division 
of  the  Supreme  Court  directly,  and  not  be  limited  to  having  his 
appeal  heard  by  one  justice.  If,  on  the  other  hand,  provision  is 
made  here  that  such  appeal  shall  be  heard  before  more  than  one 
justice  assigned  by  the  Appellate  Division  of  the  Supreme  Court, 
I  should  not  raise  the  objection  that  I  do  now.  I  know  that  the 
answer  will  be  made,  among  other  things,  that  we  are  consolidating' 
courts,  and  that  we  do  not  want  to  create  another  constitutional 
court,  because  the  words  "City  Court  "is  named  in  this  amendment. 
If  there  can  be  any  way  to  avoid  that,  I  have  no  desire  of  imposing 
any  such  suggestion  upon  this  Convention,  although  they  have  as 
much  right  to  be  named  in  this  court  as  a  justice  of  the  peace.  All 
that  I  say  is  this,  that,  if  a  litigant  goes  to  court,  and,  if  he  has  a 
right  to  an  appeal,  he  should  have  every  facility  to  be  heard;  and 
because  the  City  Court  has  not  general  jurisdiction,  that  is  no  reason 
why  litigants  in  that  court  should  not  have  a  right  to  get  a  final 
hearing  upon  appeal  before  a  full  bench.  I  say,  too,  that  the  criti- 
cism that  by  doing  this  we  create  a  constitutional  court,  will  be  of 
very  little  avail,  because  there  is  another  section  of  this  very  pn> 


970  REVISED  RECORD.  [Tuesday, 

vision  which  prohibits  the  increasing  of  the  powers  or  jurisdiction 
of  inferior  courts,  so  that,  after  all,  the  adoption  of  this  amendment 
will  only  mean  the  naming  of  the  court  in  this  particular  subdivision 
to  distinguish  it  from  the  smaller  inferior  local  courts,  and  would 
give  the  litigants  in  that  court  the  right  to  be  heard  in  the  Appellate 
Division  in  the  Supreme  Court  in  an  appeal  from  the  General  Term 
of  the  City  Court,  and  not  be  compelled  to  have  that  appeal  heard 
by  one  justice,  as  is  permitted  by  this  section. 

Mr.  J.  Johnson  —  Mr.  Chairman,  I  should  be  very  unwilling  to 
see  any  further  or  any  recognition  of  the  City  Court  of  New  York 
in  the  C.onstitutiori.  A  court  that  has  but  six  days  for  the  return 
of  a  summons,  and  yet  has  jurisdiction  to  an  unlimited  amount  in. 
damage  cases,  is  a  court  that  is  not  created  or  arranged  on  any 
proper  lines  of  policy.  There  is  this  further  proof  about  that  court, 
it  is  treated  as  a  local  court  in  the  strictest  sense.  Formerly  it  was 
the  case,  and  I  understand  it  is  now,  that  any  person  doing  busi- 
ness in  the  city  of  New  York,  or  having  his  goods  and  chattels 
there,  if  he  resides  outside  the  city,  is  treated  as  a  non-resident,  and 
his  property  is  liable  to  attachment.  That,  certainly,  was  so  until 
recently,  and  I  have  understood  that  it  is  so  now.  But,  at  any  rate, 
a  court  that  assumes  general  jurisdiction  to  give  judgment  for  any 
amount  on  a  six-days'  summons,  and  I  believe  now  it  can  be  three 
days  in  certain  cases,  it  seems  to  me  should  not  be  dignified  or 
helped  at  all  by  any  recognition  in  the  Constitution  of  the  State. 

Mr.  Root  —  Mr.  Chairman,  there  is  a  widespread  opinion  that 
the  City  Court  of  New  York  ought  to  be  abolished.  Its  jurisdiction 
is  an  illustration  of  the  vicious  legislation  which  continually  enlarges 
the  jurisdiction  of  local  and  inferior  courts.  I  should  be  very  sorry 
to  see  the  Legislature  prevented  from  dealing  with  that  court  in 
the  exercise  of  its  wisdom  hereafter,  either  to  abolish  it  or  to  reduce 
its  jurisdiction  by  putting  it  into  the  Constitution.  I  do  not  believe 
that  the  court  should  be  treated  differently,  in  any  particular,  from 
any  other  inferior  and  local  court,  and  I  think  the  Appellate  Division 
of  the  Supreme  Court  can  dispose  of  appeals  from  its  judgments  to 
the  satisfaction  of  the  people  of  the  city  of  New  York,  and  I  hope 
this  amendment  will  not  prevail. 

The  Chairman  put  the  question  on  the  amendment  proposed  by 
Mr.  Platzek,  and  it  was  determined  in  the  negative. 

Mr.  Woodward  —  Mr.  Chairman,  I  have  an  amendment  to  offer 
to  this  section. 

The  Secretary  read  the  amendment  proposed  by  Mr.  Woodward, 
as  follows: 


August  21.]  CONSTITUTIONAL  CONVENTION.  971 

"I  move  that  in  section  5,  commencing  at  line  21,  page  5,  after 
'court,'  insert  as  follows:  'No  justice  of  the  Supreme  Court  who 
has  once  tried  a  case  upon  the  law  in  fact  without  a  jury,  and  his 
decision  has  been  reversed  and  the  case  sent  back  for  a  new  trial, 
the  case  shall  go  before  another  justice  of  such  court  for  a  new 
trial." 

Mr.  Woodward  —  The  object  of  that  amendment  is  that  a  justice, 
who  has  once  tried  a  case  and  has  formed  an  opinion  in  reference 
to  it,  shall  not  sit  in  judgment  upon  the  same  case  again.  When 
we  reverse  the  finding  of  a  jury  we  never  send  the  case  back  to  the 
same  jury,  and  why  should  we  not,  if  men  are  just  as  well  prepared 
to  try  a  case  the  second  time  after  they  have  decided  it  once  as  they 
are  the  first  time?  We  do  not  send  it  back  to  the  jury  because 
the  jury  have  formed  their  opinion,  and  it  is  difficult,  with  evidence, 
to  get  over  their  opinions.  So  with  referees.  A  referee  who  has 
once  tried  a  case  is  not  in  a  proper  situation  to  try  it  again,  and  the 
courts  do  not  send  it  back  to  that  referee.  They  send  it  to  some 
other  referee.  Is  not  the  referee's  mind  as  clear  as  many  of  our 
judges?  We  have  able  referees  appointed  by  every  court.  Some- 
times they  have  been  judges  upon  the  bench,  and  come  back  and 
sit  as  referees  in  cases.  I  have  had  trials  a  number  of  times  before 
referees  who  have  been  upon  the  bench,  in  some  cases,  twenty  years, 
and  yet,  if  they  made  a  decision  and  it  was  sent  back  for  a  new  trial, 
it  would  go  to  another  referee.  Why?  Because  he  has  formed  an 
opinion,  and  nine  times  out  of  ten  the  judge  has  formed  such  an 
opinion  as  disqualifies  him  from  hearing  the  case  again  on  a  fair 
trial.  Nine  times  out  of  ten  our  judges,  if  you  appeal  a  case  that 
they  have  decided  and  spent  some  time  in  trying,  are  mad  because 
you  do  appeal,  and  they  will  beat  you,  if  they  can.  I  have  seen  that 
many  times,  and  I  say  that  you  should  not  send  the  case  back  to 
the  same  judge  to  try  again  after  you  have  appealed  from  his 
decision,  for  the  reason  that  you  have  created  a  little  feeling,  per- 
haps, but  whether  you  have  or  not,  if  he  designs  to  act  conscien- 
tiously, if  he  has  formed  an  opinion  in  reference  to  the  case,  it  is  a 
little  difficult  for  him  to  go  back  and  try  it  over  again,  qualified,  as 
he  should  be,  without  any  predisposition  on  the  side,  calculating, 
when  he  tries  it  the  second  time,  to  decide  the  case  upon  the 
evidence,  without  prejudice,  fear  or  favor.  Our  judges  are  just  as 
apt  to  get  one-sided  in  such  cases  where  they  have  tried  a  case 
once  as  referees  or  juries.  They  are  men,  they  are  nothing  but  men. 
They  are  not  gods  that  we  put  up,  that  can  discard  all  previous  feel- 
ing, and  for  that  reason  the  case  that  has  once  been  tried  by  a  judge 
upon  the  facts  and  law,  without  a  jury,  should  not  go  back  to  the 


972  REVISED  RECORD.  [Tuesday, 

same  judge  to  be  tried'  over  again.  What  is  the  reason  that  we  do 
not  allow  a  judge  who  has  once  had  a  case  and  tried  it  to  sit  in 
judgment  in  the  Appellate  Court  upon  the  same  case?  Why,  it  is 
because  he  has  formed  an  opinion  and  because  he  would  not,  per- 
haps, look  at  the  case  in  the  same  manner  in  which  a  dispassionate 
judge  ought  to  look  at  a  case,  and  would  look  at  it  if  he  had  not 
been  employed  in  that  case.  It  is  for  this  reason,  among  others, 
and  I  might  urge  a  good  many  others,  that  we  should  have  such  an 
amendment.  I  know 

They  struggle  against  fearful  odds, 
Who  strive  against  the  people's  gods. 

It  is  true  that  this  report,  having  been  made  by  a  large  number 
of  men  on  the  committee,  has  become  such  that  it  is  almost  impos- 
sible to  make  any  improvement  on  it.  Of  course,  it  is  so  nearly 
perfect  that  we  can  almost,  perhaps,  pronounce  it  perfect.  But  I 
say  there  may  be  some  things  about  it  that  will  improve  it,  notwith- 
standing all  the  wisdom  of  the  seventeen  men  who  have  made  this 
report,  and  for  that  reason  I  think  this,  among  other  things,  should 
be  introduced  into  that  amendment.  There  are  other  things  that 
I  would  favor.  As  a  general  rule,  I  am  in  favor  of  that  report.  It 
contains  a  large  number  of  very  excellent  provisions.  I  like  the 
report  for  the  most  part.  But  this  is  a  point  that  should  have  been 
regarded  by  them,  and  should  have  been  embodied  in  their  report. 

The  Chairman  put  the  question  on  Mr.  Woodward's  amendment, 
and  it  was  determined  in  the  negative. 

Mr.  Mereness  —  For  the  purpose  of  making  an  inquiry,  I  move 
to  strike  out  the  first  line  of  section  5.  I  see  in  line  14  it  says: 
"  Their  salaries  shall  be  paid  by  the  said  counties,  respectively,  and 
shall  be  the  same  as  the  salaries  of  the  other  justices  of  the  Supreme 
Court  residing  in  the  same  counties."  I  would  like  to  inquire  of  the 
Judiciary  Committee  whether  the  effect  of  this  article  will  be  to 
transfer  from  the  counties  of  Erie,  Kings  and  New  York,  after  the 
expiration  of  the  terms  of  the  present  eighteen  judges,  who  are 
transferred  to  the  Supreme  Court,  all  of  the  expense  of  those  addi- 
tional eighteen  judges  to  the  whole  State,  including  the  three 
counties? 

Mr.  Marshall  —  It  would.  The  salaries  which  are  paid  by  the 
State  to  other  judges  would  be  paid  out  of  the  State  treasury  to  the 
successors  of  the  judges  now  in  office. 

Mr.  Forbes  —  I  would  like  to  ask  where  this  provision,  in  regard 
to  the  salaries  of  the  present  justices,  is?  I  do  not  find  it.  As  I 


August  21.]  CONSTITUTIONAL  CONVENTION.  973 

read  the  amendment,  the  salaries  will  be  continued,  not  as  they 
are  at  present,  but  as  salaries  of  the  Supreme  Court  justices. 

Mr.  Marshall  —  That  is  correct.  The  salaries  were  to  be  paid 
by  the  counties,  respectively,  and  the  amount  is  to  be  the  same  as 
that  paid  to  the  Supreme  Court  justices  residing  in  the  same  coun- 
ties. There  is  no  provision  in  the  Constitution  as  to  what  those 
salaries  are.  That  is  provided  for  in  the  judiciary  act  of  1870,  as 
amended. 

Mr.  Mereness  —  Mr.  Chairman,  I  will  withdraw  the  motion  which 
I  made  for  the  purpose  of  making  an  inquiry,  and  submit  an 
amendment. 

The  Secretary  read  the  amendment  offered  by  Mr.  Mereness,  as 
follows: 

Insert  in  line  14,  page  5,  after  the  word  "  salaries  "  the  following: 
"And  the  salaries  and  allowances  of  their  successors." 

The  Chairman  put  the  question  on  Mr.  Mereness's  amendment, 
and  it  was  determined  in  the  negative. 

Mr.  Forbes  —  Mr.  Chairman,  I  offer  an  amendment  to  this 
section. 

Mr.  Forbes's  amendment  was  read  by  the  Secretary  as  follows: 

Mr.  Forbes  moves  to  strike  out,  at  page  5,  lines  15,  16  and  17,  as 
follows:  "And  shall  be  the  same  as  the  salaries  of  the  other  justices 
of  the  Supreme  Court  residing  in  the  same  counties." 

Mr.  Forbes  —  The  object  that  I  have  in  introducing  this  amend- 
ment is  to  anticipate  another  amendment  which  I  propose  to  offer,  in 
regard  to  this  same  section.  I  desire  to  have  it  understood  whether 
the  judges  who  are  now  in  office  and  who,  in  the  city  of  New  York, 
are  serving  the  Supreme  Court  at  the  same  salaries  that  they  receive 
as  judges  of  the  Common  Pleas  and  Superior  Court,  and  who  are 
willing  to  do  that,  are  to  have  their  salaries  increased  by  this  section 
of  the  Constitution;  whether  gentlemen  who  have  not  been  elected 
as  judges  of  the  Supreme  Court  by  the  people  are  to  be  transferred 
to  the  Supreme  Court  with  increased  salaries? 

Mr.  A.  H.  Green  —  Mr.  Chairman,  I  would  ask  Mr.  Marshall  if 
he  would  be  kind  enough  to  inform  me  and  the  Convention  what  the 
salaries  now  are  of  the  judges  of  the  Supreme  Court  in  the  city  of 
New  York,  and  what  the  salaries  now  are  of  those  gentlemen  who 
are  supposed  to  be  injected  into  the  Supreme  Court?  I  think  that 
is  rather  an  important  matter  for  us  to  understand. 

Mr.  Marshall  —  The  salary  of  the  Supreme  Court  judges,  paid 
of  the  State  treasury,  is  $7,200.    There  is  an  additional  allow- 


974  REVISED  RECORD.  [Tuesday, 

ance  made  by  the  county  of  New  York,  to  the  amount  of  $10,000, 
making  the  salary  of  the  Supreme  Court  judge,  as  I  understand  it, 
$17,200.  The  salary  of  the  judge  of  the  Court  of  Common  Pleas 
and  of  the  Superior  Court  is  $15,000  per  annum. 

Mr.  A.  H.  Green  —  I  understand,  then,  that  the  salaries  of  the 
Supreme  Court  judges,  as  proposed,  is  $17,200,  and  the  term  is 
fourteen  years,  and  that  the  salaries  of  the  judges  of  the  Court  of 
Common  Pleas  and  Superior  Court  are  $15,000.  Then,  as  the  gen- 
tleman has  remarked,  persons  elected  to  serve  that  term  under  the 
article  of  the  Constitution  cannot  have  their  salaries  increased  or 
decreased  during  their  term  of  office,  but  the  salary  is  to  be  increased 
by  the  operation  of  this  article.  I  have  been,  I  will  not  say,  deluged, 
but  I  have  had  several  treatises  on  the  great  importance  of  not  com- 
bining these  courts  together.  I  have  had  the  pleasure  of  looking 
them  over  and  they  have  impressed  themselves  very  deeply  upon 
my  mind.  I  have  come  to  the  conclusion  that  they  should  not  be 
united,  but  here  is  another  proposition  that  seems  to  have  pacified 
the  judges  that  are  to  take  their  places  as  judges  of  the  Supreme 
Court,  and  that  opposition  seems  to  be  exceedingly  faint  as  to  their 
now  changing  their  office.  I  desired  that  the  Convention  should  be 
informed  upon  this  particular  matter.  It  is  about  as  I  supposed  it 
was.  I  do  not  see  how  the  measure  can  very  well  be  carried  to 
give  them  a  salary  beyond  that  which  they  received  when  they 
were  elected. 

Mr.  Bowers  —  Mr.  Chairman,  this  question  was  very  carefully 
considered  by  the  Judiciary  Committee,  and  it  seemed  impossible  to 
arrive  at  any  other  conclusion  and  do  justice.  The  question  of  con- 
solidation of  the  courts  was  one  which  seemed  to  meet  a  large 
public  sentiment.  These  gentlemen  who  are  now  justices  of  the 
Superior  Court  and  Court  of  Common  Pleas  in  the  county  of  New 
York,  for  example,  are  not  particularly  pleased  with  having  their 
courts  abolished,  and  they  are  compelled  to  yield  to  the  public  good 
in  acceding,  if  they  do  accede,  to  the  proposition.  In  order  to  do 
it  at  all  they  had  to  be  made  justices  of  the  Supreme  Court,  and  it 
would  have  been  very  absurd  to  make  them  justices  of  the  Supreme 
Court  and  not  give  them  the  same  compensation  that  their  asso- 
ciates received.  It  was  an  act  this  Convention  could  not  afford  to 
ratify,  had  the  committee  thought  for  a  moment  of  doing  otherwise. 
It  will  be  recollected  that  the  city  of  New  York  has  continued  to  pay 
the  salaries  of  these  gentlemen  until  the  expiration  of  the  term  for 
which  they  were  elected  as  local  judges,  and  then,  and  not  till  then,, 
is  the  State  to  bear  any  portion  of  the  cost,  and  to  then  only  bear 
the  same  proportion  of  their  salaries  that  it  pays  to-day  to  all  the 


August  21.]  CONSTITUTIONAL  CONVENTION.  975 

rest  of  the  judges  in  the  State.  It  was  felt,  in  determining  this 
question,  that  these  judges  of  the  City  Court  gave  up  and  are  com- 
pelled to  give  up  a  great  deal,  and  no  man  seemed  to  consider  seri- 
ously the  proposition  that  we  could  afford  to  make  them  less  than 
Supreme  Court  judges,  when  we  placed  them  there,  excepting  that 
they  are  not  allowed  to  be  selected  to  sit  in  the  Appellate  Division 
of  the  court  for  reasons  which  seemed  controlling,  and  those  are, 
that  the  Appellate  Division  hears  cases  from  other  counties  than 
the  counties  in  which  these  gentlemen  were  elected.  It  was  the 
desire  of  the  Judiciary  Committee  to  do  everything  possible  to 
elevate  these  gentlemen  to  the  same  position  as  that  held  by  their 
new  associates  on  the  Supreme  Court  bench.  That  has  been  done, 
and  it  would  be  an  unjust  discrimination  which  left  them  with  less 
salary  than  those  gentlemen  received.  I  hope  the  amendment  will 
not  be  adopted,  and  the  article  will  stand  in  that  regard  as  presented. 

Mr.  Root  —  Air.  Chairman,  before  that  question  is  put,  may  I 
make  a  statement  of  figures?  The  dividing  line  of  the  population 
of  this  State  is  the  north  line  of  the  city  of  Yonkers.  One-half  of 
the  population  of  the  State  resides  south  of  that  line,  one-half  resides 
north  of  that  line.  South  of  the  line  is  the  whole  of  the  First 
Department  and  the  greater  part  of  the  Second  Department.  After 
all  the  changes  and  transfers  which  are  proposed  in  this  article, 
and  after  the  lapse  of  fourteen  years  has  brought  the  judges  of  these 
Superior  City  Courts  one  by  one  into  full  fellowship  in  the  Supreme 
Court,  there  will  be  more  judges  north  of  that  line  by  from  ten  to 
twenty  per  cent  than  there  are  south  of  it,  although  half  the  popu- 
lation is  south,  although  more  than  one-half  of  the  judicial  business 
is  done  south,  although  more  than  half  the  taxes  are  paid  south, 
and  although,  in  order  to  secure  the  services  of  the  judges  south  of 
the  line,  the  local  subdivisions  of  the  State,  the  cities  of  New  York 
and  Brooklyn,  are  obliged  to  pay  to  their  judges  additional  salary 
far  greater  than  the  entire  salary  that  is  paid  by  the  State.  So  that 
for  less  than  half  of  the  judicial  service  of  the  State,  half  of  its  people 
paying  more  than  half  its  taxes,  and  having  more  than  half  the 
judicial  business,  are  obliged  to  pay  double  the  price  for  judicial 
service,  more  than  double  the  price  for  judicial  service,  that  is  paid 
by  the  other  half  of  the  people.  That,  certainly,  is  not  discrimina- 
tion in  favor  of  the  people  of  the  cities  of  New  York  and  Brooklyn. 

Mr.  A.  H.  Green  —  Mr.  Chairman,  I  would  like  to  ask  a  single 
question,  what  the  reason  is,  if  the  city  of  New  York  and  its  adja- 
cent territory  pay  more  than  one-half  of  the  taxes  of  the  State,  if 
that  burden  is  imposed  upon  them,  as  matter  of  economy,  what 
reason  there  is  for  imposing  larger  salaries  upon  those  who  have 


976  REVISED  RECORD.  [Tuesday, 

undertaken  to  serve  their  term  for  a  specific  sum?  This  question 
is  exactly  appropriate  to  one  that  was  up  in  the  Convention  the  other 
day,  about  increasing  the  salaries  of  officers  during  their  term  of 
office.  I  do  not  see  any  logic  in  the  argument  of  my  friend  from 
New  York  (Mr.  Bowers)  about  keeping  up  these  salaries,  that 
because  New  York  is  already  burdened  with  half  the  taxes  of  the 
State  she  should  be  additionally  taxed  for  her  judicial  service. 

Mr.  Mulqueen  —  Mr.  Chairman,  I  have  but  a  single  word  to  say, 
and  that  is,  that  if  this  Convention  assigns  the  judges  of  the  Court 
of  Common  Pleas  and  the  Superior  Court  to  the  Supreme  Court 
and  compels  them  to  do  the  same  work  as  Supreme  Court  judges 
must  do,  it  seems  to  me  only  fair  to  insist  that  they  should  receive 
the  same  compensation.  They  must  do  the  same  work  that  the 
judges  of  the  Supreme  Court  must  do,  and  they  ought  to  be  paid, 
in  my  judgment,  the  same  compensation. 

Mr.  E.  A.  Brown  —  I  would  like  to  ask  the  chairman  of  the 
Judiciary  Committee  one  question,  and  the  reason  for  my  asking 
is  this:  I  understood  the  gentleman  from  New  York  (Mr.  Bowers) 
to  say  that  the  salary  of  these  judges  transferred  from  the  New 
York  local  courts  to  the  Supreme  Court  bench  would  be  paid  by  the 
counties,  respectively,  during  the  balance  of  their  term.  Now,  in 
lines  14  to  17,  in  article  5,  page  5,  there  occurs  this  language:  "  Their 
salaries  shall  be  paid  by  the  same  counties,  respectively,  and  shall  be 
the  same  as  the  salaries  of  the  other  justices  of  the  Supreme  Court 
residing  in  the  same  counties."  The  question  I  desire  to  ask  of  the 
chairman  of  the  committee  is,  whether  that  is  intended  to  continue 
for  all  time,  or  is  it  simply  for  the  balance  of  the  term  of  these  trans- 
ferred judges? 

Mr.  Root  —  That  is  not  intended  to  continue,  except  for  the  bal- 
ance of  the  term  of  the  transferred  judges.  I  suppose  when  those 
terms  expire  the  whole  matter  is  under  the  control  of  the  Legisla- 
ture to  do  as  it  sees  fit. 

Mr.  E.  A.  Brown  —  Then  it  seems  to  me  that  the  language  con- 
tained in  lines  14  to  17,  on  page  5,  is  misleading.  It  seems  to  be 
general  in  its  terms;  and,  if  the  salary  of  those  judges  transferred 
from  those  local  courts  is  not  to  be  paid  in  the  future,  as  in  the 
past,  I  am  opposed  to  this  article  in  that  form. 

Mr.  Roche  —  Mr.  Chairman,  I  find  on  lines  14  and  15  the  follow- 
ing: "Their  salaries,"  referring,  of  course,  to  the  salaries  of  the 
judges  named  in  section  5,  "shall  be  paid  by  the  several  counties, 
respectively."  Now,  what  are  the  counties  that  are  meant?  There 
is  but  one  county  mentioned  in  that  section,  namely,  the  city  and 


August  21.]  CONSTITUTIONAL  CONVENTION.  977 

county  of  New  York.  The  other  courts  mentioned  are  the  Superior 
Court  of  Buffalo  and  the  City  Court  of  Brooklyn,  but  neither  Buffalo 
nor  Brooklyn  is  a  county. 

Mr.  Marshall  —  You  will  see  by  reading  lines  13  and  14  that  the 
section  says :  "  That  they  shall  sit  only  in  the  counties  in  which  they 
were  elected  or  appointed."  That  defines  the  counties. 

The  Chairman  put  the  question  on  Mr.  Forbes's  amendment,  and 
it  was  determined  in  the  negative. 

Mr.  Forbes  —  I  offer  the  following  amendment  to  this  section. 
Mr.  Forbes's  amendment  was  read  by  the  Secretary  as  follows : 

Mr.  Forbes  moves  to  strike  out,  page  5,  lines  I  and  2,  the  words 
"  the  Superior  Court  of  the  City  of  New  York,  the  Court  of  Com- 
mon Pleas  of  the  city  and  county  of  New  York." 

Mr.  Forbes  —  Mr.  Chairman,  the  courts  in  New  York  city  pro- 
posed to  be  abolished  have  existed  for  many  years,  and  have  in  times 
past  been  presided  over  by  men  of  national  reputation.  No  reason 
is  given  for  their  abolition,  except  that  of  economy,  caused  by  the 
abolition  of  their  respective  clerk's  office;  but  the  amendment  pro- 
vides that  the  judges  shall  receive  in  future  ''  the  salaries  of  the 
other  justices  of  the  Supreme  Court,"  i.  e.,  $2,500  each  a  year  more 
than  now,  or  a  total  of  $30,000  a  year.  This  is  the  economy  pro- 
posed. It  is  to  be  presumed  that  the  care  of  papers  and  routine 
work  after  the  closing  of  the  clerks'  offices  of  Jthese  courts  will 
entail  on  the  office  of  the  clerk  of  the  Supreme  Court  additional 
labor,  and,  therefore,  requires  additional  employes  about  equal  in 
number  to  those  displaced  in  the  offices  abolished. 

It  is  said  also  that  a  plaintiff  should  not  have  a  choice  of  tribunals. 
Why  not?  If  a  court  is  behind  in  its  calendar,  should  a  plaintiff 
who  desires  to  get  a  speedy  trial,  be  compelled  to  go  to  it?  If,  in 
the  shifting  personnel  of  the  courts,  one  has  an  abler  personnel  than 
another,  should  not  the  plaintiff  be  permitted  to  choose  the  abler 
tribunal? 

The  objection  that  a  corrupt  plaintiff  may  bring  his  case  before 
a  corrupt  judge,  happily,  does  not  apply,  or  the  committee  would 
have  got  rid  of  the  corrupt  judges  and  not  transferred  them,  with 
all  their  power  of  evil,  to  the  Supreme  Court.  The  committee 
propose  an  experiment  in  which  enter  these  uncertainties  —  the 
approval  by  the  people  of  a  scheme  which  transfers  judges  elected 
to  local  courts,  with  a  salary  of  $15,000  a  year,  to  the  Supreme  Court 
of  the  State,  with  a  salary  of  $17,500.  Will  the  people  of  the  State 
impose  this  upon  the  people  of  the  city  of  New  York?  Is  this  home 
62 


9;8  REVISED  RECORD.  [Tuesday, 

rule?  Are  we  to  pass  upon  the  fitness  of  the  twelve  judges  pro- 
posed to  be  transferred  for  the  new  position  which  they  are  to  hold? 
Another  uncertainty  is  the  action  of  twenty-two  independent 
judges.  The  experiment  of  so  large  a  body  of  judges  forming  one 
court  has  never  been  tried.  What  personal  incentive  to  work  is 
there  among  so  many?  So  large  a  body  of  judges  has  been  well 
characterized  as  a  mob.  This  was  conceded  on  the  argument,  in 
regard  to  striking  out  the  clause  giving  power  to  the  justices  of 
the  Appellate  Division  to  assign  the  other  justices  to  positions.  But 
will  this  power  of  the  Appellate  Court  prevent  men  from  shirking 
their  work?  We  think  not.  They  do  not  belong  to  a  body  of 
men  so  small  that  the  condemnation  of  the  body  is  the  condemna- 
tion .of  each  of  its  members,  but  to  a  large  body  which  is  the  only 
court,  and  which,  as  such,  is  not  subject  to  an  attack  which  will 
affect  either  its  separate  members  or  its  existence.  But  who  are 
the  justices  of  the  Appellate  Division  who  have  this  great  power? 
They  are  not  elected  to  that  exalted  position  by  the  people,  but 
are  appointed  by  the  Governor.  If  the  appointment  is  made  on 
the  recommendation  of  the  remaining  judges,  it  is  apparent  that 
the  discipline  exercised  over  the  less  fortunate  trial  judges  will  not 
be  harsh.  Let  us,  as  a  Convention,  enter  into  no  experiment  when 
there  is  no  reason  for  a  change,  except,  perhaps,  dislike  to  the 
personnel  of  the  court  which  will  soon  pass  away. 

The  Chairman-  put  the  question  on  Mr.  Forbes's  amendment,  and 
it  was  determined  in  the  negative. 

The  Chairman  —  If  there  are  no  further  amendments  to  section  5, 
the  Secretary  will  read  section  6. 

The  Secretary  read  section  6  as  follows : 

"Sec.  6.  Circuit  Courts  and  Courts  of  Oyer  and  Terminer  are 
abolished  from  and  after  the  last  day  of  December,  1895.  All  their 
jurisdiction  shall  thereupon  be  vested  in  the  Supreme  Court,  and  all 
actions  and  proceedings  then  pending  in  such  courts  shall  be  trans- 
ferred to  the  Supreme  Court  for  hearing  and  determination.  Any 
justice  of  the  Supreme  Court,  except  as  otherwise  provided  in  this 
article,  may  hold  court  in  any  county." 

Mr.  Dickey  —  Mr.  Chairman,  I  propose  an  amendment  to  this 
section. 

The  Secretary  read  Mr.  Dickey's  amendment  as  follows: 

Amend  section  6  by  adding  thereto  the  following:  "Whenever, 
and  as  often  as  there  shall  be  such  an  accumulation  of  causes  on 
the  calendar  of  the  Court  of  Appeals  that  the  public  interests 


August  21.]  CONSTITUTIONAL  CONVENTION.  979 

require  a  more  speedy  disposition  thereof,  the  said  court  may  certify 
such  fact  to  the  Governor,  who  shall  thereupon  designate  seven 
judges  of  the  Supreme  Court  to  act  as  associate  judges  for  the  time 
being  of  the  Court  of  Appeals,  and  to  form  a  Second  Division  of 
said  court,  and  who  shall  act  as  such  until  all  the  causes  on  the 
said  calendar  at  the  time  of  the  making  of  such  certificate  are  deter- 
mined or  the  judges  of  said  court,  elected  as  such,  shall  certify  to 
the  Governor  that  said  causes  are  substantially  disposed  of,  and  on 
receiving  such  certificate  the  Governor  may  declare  such  division 
dissolved." 

Mr.  Nicoll  —  Mr.  Chairman,  I  rise  to  a  point  of  order.  The 
gentleman  evidently  intended  this  as  an  amendment  to  section  7. 

Mr.  Dickey  —  I  will  withdraw  it  now,  Mr.  Chairman,  and  will 
renew  it  when  we  reach  section  7. 

The  Chairman — Are  there  any  amendments  to  section  6?  If 
not,  the  Secretary  will  read  section  7. 

The  Secretary  read  section  7  as  follows: 

"  Sec.  7.  The  Court  of  Appeals  is  continued.  It  shall  consist  of 
the  chief  judge  and  associate  judges  now  in  office,  who  shall  hold 
their  offices  until  the  expiration  of  their  respective  terms,  and  of 
two  additional  associate  judges,  and  of  their  successors.  Such 
additional  judges  shall  be  chosen  by  the  electors  of  the  State  at  the 
first  general  election  after  the  adoption  of  this  article,  and  at  said 
election  each  elector  may  vote  for  only  one  judge.  The  official 
terms  of  the  chief  judge  and  associate  judges  shall  be  fourteen  years 
from  and  including  the  first  day  of  January  next,  after  their  election. 
After  the  additional  judges  are  elected  any  seven  members  of  the 
court  shall  form  a  quorum,  and  the  concurrence  of  five  shall  be 
necessary  to  a  decision.  In  the  meantime  any  five  members  shall 
form  a  quorum,  and  the  concurrence  of  four  shall  be  necessary  to  a 
decision.  The  court  shall  have  power  to  appoint  and  to  remove  its 
reporter,  clerk  and  attendants." 

Mr.  E.  R.  Brown  —  Mr.  Chairman,  I  desire  to  offer  an  amend- 
ment to  that  section. 

Mr.  Bowers  —  Mr.  Chairman,  I  make  the  point  of  order  that 
there  is  already  an  amendment  before  the  Convention,  that  of 
Mr.  Dickey. 

The  Chairman  —  Mr.  Dickey  withdrew  his  amendment. 
Mr.  Bowers  —  I  understood  he  withdrew  it  as  applying  to  sec- 
tion 6,  and  left  it  as  applying  to  section  7. 


980  REVISED  RECORD.  [Tuesday, 

The  Chairman  —  The  point  of  order  is  not  well  taken.  The  Sec- 
retary will  read  the  amendment. 

The  Secretary  read  Mr.  Brown's  amendment  as  follows: 

Strike  out  line  14,  and  all  after  and  down  to  the  word  "  judge," 
as  it  first  occurs  in  line  18,  page  6.  Also,  strike  out  the  sentence 
beginning  with  the  word  "  after,"  in  line  20,  and  all  following  down 
to  and  including  the  word  "  meantime,"  on  page  6. 

Mr.  E.  R.  Brown  —  The  effect  of  this  amendment  is  to  strike 
out  that  part  of  the  section  which  provides  for  an  increase 
of  the  Court  of  Appeals.  As  I  understood  the  chairman  of 
the  Judiciary  Committee,  that  committee  had  made  provisions  in 
this  article  which  would  largely  reduce  the  duties  devolving  upon 
the  Court  of  Appeals,  and  provided  that  the  Legislature  might  fur- 
ther restrict  appeals  to  the  Court  of  Appeals,  although  they  might 
not  fix  a  money  limit.  Now,  with  the  duties  of  the  Court  of 
Appeals  largely  decreased,  with  ample  provisions  made  for  still 
further  decreasing  them,  it  does  not  seem  to  me  that  it  is  consistent 
for  this  Convention,  at  the  same  time,  to  increase  the  judges  in  the 
Court  of  Appeals.  Furthermore,  with  those  who  are  well 
acquainted  with  the  performance  of  duties  in  the  Court  of  Appeals, 
I  have  become  satisfied  that  it  is  very  doubtful  if  nine  judges  would 
do  more  work  than  seven  judges;  I  noticed  in  the  argument  that 
was  presented  to  this  Convention  by  the  chairman  of  the  Judiciary 
Committee,  that  the  opinion  of  the  committee  was  that  it  would 
somewhat  increase  the  capacity  of  that  court.  The  inference  from 
the  remarks,  as  he  made  them,  was  that  the  efficiency  of  the  court 
would  not  be  increased  in  proportion  to  the  number  of  judges  that 
are  added  to  it. 

Mr.  Parmenter  —  Mr.  Chairman,  I  have  an  amendment  I  desire 
to  offer  to  this  section. 

Mr.  Choate  —  If  Mr.  Parmenter  will  allow  me,  I  would  like  to 
ask  a  question  of  the  Chair  on  a  question  of  order.  I  desire  to  know 
whether  the  vote  on  this  amendment  will  be  final,  or  whether  the 
same  question  can  be  raised  again  after  the  sections  have  all  been 
read,  because  it  is  a  very  important  question  on  which,  I  think, 
many  members  would  like  to  be  heard,  and  whether  our  rule  55  that 
equivalent  motions,  resolutions  or  amendments  shall  not  be  enter- 
tained, will  apply  to  such  a  proposition  as  this,  by  way  of 
amendment  to  an  amendment,  proposed  by  the  standing  committee? 
That  is  to  say,  whether  we  have  now  to  decide  this  finally,  or 
whether,  after  all  the  sections  have  been  read,  a  similar  motion,  if 
this  should  now  be  defeated,  can  be  made? 


August  2i.]  CONSTITUTIONAL  CONVENTION.  981 

The  Chairman  —  The  Chair  will  hold,  under  the  authority  of 
rule  55,  that  a  similar  or  equivalent  motion  could  not  be  made. 

Mr.  Choate  —  And  will  that  ruling  apply  to  all  amendments  that 
are  proposed  in  the  course  of  its  consideration,  section  by  section? 
The  Chairman  —  The  ruling  will  so  apply. 

Mr.  Choate  —  I  think  the  committee  ought  to  know  that,  because, 
for  one,  I  had  been  under  the  impression  that  such  a  question  as 
this  might  be  considered  after  the  whole  had  been  gone  through 
with. 

Mr.  Parmenter  —  Mr.  Chairman,  I  desire  to  offer  an  amendment 
now  which  I  would  like  to  have  read. 

The  Chairman  —  Does  the  gentleman  from  Rensselaer  (Mr.  Par- 
menter) offer  this  as  an  amendment  to  the  amendment? 

Mr.  Parmenter  —  I  offer  it  as  an  amendment  to  the  whole  section. 

The  Chairman  —  In  that  respect  it  is  not  in  order.  There  can 
be  but  one  amendment  pending  at  a  time,  and  the  committee  must 
first  dispose  of  Mr.  Brown's  amendment. 

Mr.  Hotchkiss  —  Mr  Chairman,  I  sincerely  trust  that  the  amend- 
ment proposed  by  the  gentleman  from  Jefferson  will  be  adopted  by 
the  Convention.  Although  one  proposing  an  amendment  to  this 
article  may,  perhaps,  take  warning  by  the  chorus  of  ominous  growls 
that  go  up  in  the  negative  when  a  vote  is  taken,  I  think  we  have 
at  last  struck  something  by  which  the  rule  which  seems  to  have 
prevailed  heretofore  may  be  properly  reversed  in  the  interest  of  old 
and  established  and  well-tried  forms  and  institutions,  and  that  the 
people  of  the  State  may  derive  a  distinct  benefit  from  the  adoption 
of  the  amendment. 

We  have  had,  I  believe,  twenty-five  years'  experience  with  a 
Court  of  Appeals,  established  with  seven  judges.  So  far  as  I  know, 
it  has  worked  well,  and  I  think  the  Convention  should  hesitate,  and 
hesitate  long,  before  it  abandons,  not  simply  a  form,  but  a  principle 
in  the  organization  of  our  great  court  of  last  resort.  If  any  good 
is  to  come  from  it,  if  we  can  accomplish  a  reform,  so  much  the  bet- 
ter, but  let  us  first  determine  whether  it  will  accomplish  any  measure 
of  good  and  whether  it  will  not  accomplish  a  very  considerable 
measure  of  harm. 

I  conceive  that  the  only  point  in  seeking  to  increase  the  number 
of  the  judges  must  be  either  to  increase  the  amount  of  business 
which  the  court  can  transact  with  the  same  level  of  excellence 
which  pertains  to-day,  or  else  increase  the  capacity  of  the  court 
I  fancy  that  no  one  would  suggest  that  by  increasing  the  number 


982  REVISED  RECORD.  [Tuesday, 

of  the  court  to  nine  we  should  get  any  better  law  than  we  have  with 
seven.  Therefore,  the  only  question  that  can  be  pertinent  is,  will 
nine  judges  enable  that  court  to  do  more  work  than  it  has  done  in 
the  past  with  seven?  It  has  already  been  suggested  by  the  gentle- 
man from  Jefferson  (Mr.  E.  R.  Brown)  that  it  is  anticipated  that  by 
the  changes  which  have  been  made  in  the  organization  of  the  Gen- 
eral Terms,  the  amount  of  work  crowding  upon  the  Court  of  Appeals 
in  future  will  be  somewhat  less  than  what  it  has  been  in  the  past, 
and,  therefore,  we  may  reasonably  expect  that  a  court  composed 
of  seven  judges  will  be  able  to  transact  more  important  business  of 
important  causes,  those  causes  which  are  permitted  by  the  new  arti- 
cle to  go  to  it  for  review,  than  it  has  been  permitted  to  pass  upon 
in  the  past.  And,  judging  from  the  number  of  decisions  which  that 
court  has  been  able  to  make  and  of  the  highest  character  in  the  past, 
it  seems  to  me  that  a  court  of  seven  will  certainly  be  able  to  take 
care  of  the  business  which  comes  to  it  in  the  future. 

But  will  a  court  of  nine  judges  increase  the  capacity  of  the  Court 
of  Appeals?  I  fancy  that  it  will  not.  It  will  not,  unless  we  strike 
into  and  destroy  the  homogeneity  of  the  court  as  it  has  prevailed 
in  the  past.  Now,  the  system  which  has  obtained  in  the  past  of 
seven  judges  sitting  in  that  court  for  the  hearing  of  all  causes, 
unless  from  some  circumstances  of  necessity  some  had  to  be  absent, 
when  five  might  constitute  a  quorum,  is  a  system  which  has  been 
pursued  with  a  purpose  of  having  each  individual  member  of  the 
court  a  constituent  part  of  every  decision  that  has  been  rendered, 
so  that  we  get  a  decision,  not  of  five  judges,  not  of  six  judges, 
but  of  seven  judges,  as  a  rule,  and  save  where  this  rule  has  been 
infringed  upon  from  necessity  in  the  manner  I  have  suggested. 
There  can  be  no  object  gained  in  increasing  the  number  to  nine, 
unless  we  are  to  have  two  men  taken  out  of  that  court  continually 
for  the  purpose  of  writing  opinions,  leaving  the  number  of  the  court 
for  the  performance  of  its  daily  work  at  seven. 

Now,  therein,  in  my  judgment,  comes  the  evil  of  the  plan.  We 
shall  always  have  a  shifting  court.  The  homogeneity  of  the  court, 
as  it  has  prevailed  in  the  past,  will  be  broken  in  upon.  We  shall 
have  an  entirely  different  system  from  that  which  we  have  had  in 
the  past.  We  shall  have  a  court  composed  of  nine  judges  with  only 
seven  sitting,  and  we  shall  never  know  who  those  seven  will  be. 

Now,  I  am  proposing  simply  to  suggest  these  difficulties,  because 
I  fancy  the  preponderance  of  lawyers  in  this  Convention  makes  it 
almost  assured  that  there  is  at  present  a  sentiment  well  grounded 
in  the  minds  of  the  majority  of  us,  which  will,  perhaps,  make  debate 
somewhat  unnecessary. 


August  2i.]  CONSTITUTIONAL  CONVENTION.  983 

But  certainly  the  article  itself,  as  it  comes  from  the  Judiciary 
Committee,  bears  internal  evidence  of  some  strife.  I  notice  the 
provision  is  made  that  in  voting  for  these  additional  judges  no 
elector  shall  be  permitted  to  vote  for  more  than  one.  There  has 
evidently  been  a  trade  made  there,  the  result  of  which  will  be  to 
give  to  each  political  party  one  of  the  proposed  new  judges,  or 
rather  to  each  political  convention,  because  the  members  of  that 
party  represented  by  the  electors  in  the  State,  will  have  little  or  no 
choice  in  the  matter. 

When  the  Democratic  convention  meets  and  nominates  its  can- 
didate, and  when  the  Republican  convention  meets  and  nominates 
its  candidate,  we  of  the  Democratic  faith  will  want  to  vote  for  our 
candidate,  and  you  will  want  to  vote  for  yours,  and  you  will  have 
nobody  else  to  vote  for.  The  result  will  be  that  the  whole  thing 
will  lie  in  the  hands  of  the  nominating  convention.  Now  the  sug- 
gestions which  I  have  made  in  regard  to  the  impropriety  of  increas- 
ing the  number  of  judges  from  seven  to  nine,  and  the  inadvisability 
or  the  inexpediency  of  so  doing  for  the  purpose  of  obtaining  any 
increased  amount  of  work  from  the  judges,  seems  to  have  obtained 
recognition  from  one  of  the  very  able  members  of  the  Judiciary 
Committee,  and  those  views  apparently  have  been  abandoned  by 
him,  or  it  would  seem  as  if  they  had  been  abandoned,  when  he 
joins  with  the  majority  in  approving  of  this  increase  in  the  members 
of  the  court.  While  I  recognize  the  fact  that  any  man  of  inde- 
pendent views  may  abandon  those  views  and  take  others  upon  him, 
when  moved  by  better  arguments  and  more  cogent  than  those 
which  have  gone  before,  the  expressions  which  I  hold  in  my  hand 
were  given  utterance  to  at  so  recent  a  date  that  I  should  imagine 
some  explanation  from  the  gentleman  was  in  order.  I  read  from  a 
very  able  address  delivered  by  the  Hon.  Louis  Marshall  at  the 
annual  meeting  of  the  State  Bar  Association.  In  speaking  of  the 
proposed  organization  of  the  new  courts  to  be  made  by  this  Con- 
vention, my  friend,  Mr.  Marshall,  said: 

"What  is  to  be  gained  by  establishing  a  court  of  nine  judges? 
They  will  all  be  present  at  the  argument.  If  it  is  desired  to  have 
a  homogeneous  court,  each  judge  would  express  his  opinion  in 
consultation,  as  already  stated.  A  very  good  illustration  of  the 
fact  that  nine  judges  cannot  do  more  work  than  seven  is  presented 
by  the  Supreme  Court  of  the  United  States.  Although  the  ques- 
tions that  come  before  that  court  are  not  more  difficult,  as  a 
general  thing,  than  those  that  come  before  the  Court  of  Appeals, 
the  nine  judges  of  the  Supreme  Court  of  the  United  States  dispose 
of  anly  400  cases  in  a  year,  while  the  seven  judges  of  the  Court 


984  REVISED  RECORD.  [Tuesday, 

of  Appeals  disposed  of  600.  Hence,  if  expedition  in  the  attainment 
of  justice  is  of  so  much  importance  as  is  argued  by  some,  it  is  cer- 
tainly better  to  continue  with  a  court  of  seven  judges.  If  the  other 
alternative  is  pursued,  of  permitting  only  a  part  of  nine  judges  to 
sit  at  one  time,  to  be  relieved  by  the  others  while  engaged  in  writing 
opinions,  it  will  be  impossible  to  know  exactly  of  what  members 
the  court  will  be  composed  at  any  given  time.  It  would  be  a  shifting 
court  and  not  a  homogeneous  court,  so  much  to  be  desired.  Coun- 
sel would  begin  to  speculate  as  to  whether  their  chances  of  success 
are  best  if  their  case  is  argued  at  one  time  rather  than  another, 
and  a  very  unsatisfactory  situation  is  sure  to  result  from  these  con- 
ditions. The  very  strength  of  the  Court  of  Appeals,  as  of  any 
court  of  last  resort,  lies  in  confining  its  personnel  to  a  reasonable 
number.  Seven  have  been  found  to  be  admirably  adapted  to  the 
proper  transaction  of  business  in  this  State.  These  judges  sit 
together  at  all  times,  live  together,  think  together,  act  as  a  homo- 
geneous body  of  men  from  a  homogeneous  system  of  law,  and  thus 
we  attain  in  a  measure  a  uniformity  of  decisions  so  essential  to  any 
system  of  law." 

I  could  not  have  repeated  it  better  if  I  had  drafted  it  myself.  I 
can  only  say,  "  Ditto,  Mr.  Burke."  Mr.  Marshall  has  expressed  in 
those  lines,  to  my  mind,  the  most  cogent  reasons  why  the  court 
should  be  retained  at  its  present  number,  and  why,  in  this  respect, 
the  very  able  article  framed  by  the  Judiciary  Committee  might  well 
be  disagreed  with  by  the  Convention. 

Mr.  Marshall  —  Mr.  Chairman,  the  gentleman  from  New  York 
has  honored  me  by  quoting  remarks  which  I  made,  in  January  last, 
before  the  State  Bar  Association,  and  has  apparently  challenged  me 
to  state  whether  or  not  I  have  undergone  any  change  of  heart  since 
that  time  upon  this  very  important  subject.  I  wish  to  state  for  the 
information  of  the  gentleman  that  I  have  not  changed  my  views 
upon  that  subject  in  the  slightest  degree.  Further  observation  has 
only  strengthened  me  in  the  opinions  which  I  then  expressed,  and 
I  take  the  liberty  now  to  state,  and  I  am  not  divulging  anything 
which  is  desired  to  be  kept  secret  by  the  members  of  the  Judiciary 
Committee,  that  upon  this  subject  there  was  a  very  strong  differ- 
ence of  opinion  in  the  committee;  that  in  reality  the  vote  of  the  com- 
mittee consisted  of  nine  votes  in  favor  of  an  addition  to  the  number 
of  judges  of  the  Court  of  Appeals,  as  against  eight  who  were  in 
favor  of  retaining  the  court  as  a  court  of  seven  judges,  and  I  was 
one  of  the  eight. 

I  do  not  think  that  an  increase  in  the  number  of  judges  will  in 
any  way  facilitate  the  transaction  of  the  business  of  the  court,  will 


August  21.]  CONSTITUTIONAL  CONVENTION.  985 

in  any  way  make  the  court  a  more  useful  one,  or  will  in  any  way 
add  to  the  working  power  of  the  court.  On  the  contrary,  I  now 
believe,  as  I  believed  last  January,  and  as  I  believed  in  1890,  when 
I  was  a  member  of  the  commission,  that  an  addition  to  the  number 
of  judges  of  the  Court  of  Appeals  would  in  reality  detract  from  the 
working  powers  of  the  court,  and  would  prevent  the  court  from 
transacting  as  much  business  as  a  court  of  seven  judges  can  per- 
form. And  there  is  nothing  to  be  gained  in  any  other  direction, 
because  the  Court  of  Appeals,  as  it  has  existed  since  1870,  has  been 
justly  regarded  as  one  of  the  ablest  courts  this  country  has  ever 
had.  The  opinions  of  that  court  have  been  recognized  as  models 
by  all  the  courts  of  the  Union,  are  more  frequently  cited  than  the 
opinions  of  any  other  court,  except  those  of  the  Supreme  Court  of 
the  United  States,  and  to  add  two  more  judges  to  the  court  at  this 
time,  especially  when  we  are  reducing  the  jurisdiction  of  the  court, 
is,  it  seems  to  me,  an  absolutely  unnecessary  thing.  There  is  no 
demand  by  the  judges  of  the  court  for  any  increase.  They  state 
that  they  are  entirely  able  to  transact  the  business  which  is  sub- 
mitted to  them,  and  the  calculation  which  I  have  made  of 
the  business  which  will  come  to  the  Court  of  Appeals  leads 
made  of  the  business  which  will  come  to  the  Court  of  Appeals  leads 
me  to  believe  that  the  court  will  not  at  any  time  during  the  next  ten 
or  fifteen  years  have  upon  its  calendar  in  the  course  of  a  year  to 
exceed  500  cases,  provided  the  limitations  which  have  been  sug- 
gested in  section  9  of  this  article  are  adopted. 

Mr.  C.  B.  McLaughlin  —  Mr.  Chairman,  will  the  gentleman  give 
way  for  a  question? 

Mr.  Marshall  —  Yes,  sir. 

Mr.  McLaughlin  —  I  understand  the  gentleman  to  say  that  the 
Court  of  Appeals  say  that  they  are  able  to  keep  up  with  their  work. 

Mr.  Marshall  —  Yes,  I  do. 

Mr.  McLaughlin  —  Well,  a  document  which  was  filed  here  shows 
that  they  are  not  keeping  up  with  their*  work. 

Mr.  Marshall  —  I  say  with  the  limitations  here  suggested. 

Mr.  McLaughlin  —  The  question  I  wish  to  ask  is,  how  much  are 
they  behind  to-day  with  their  work? 

Mr.  Marshall  —  The  Court  of  Appeals  disposes  of  within  125 
cases  of  the  number  of  cases  which  come  before  it,  including 
all  the  appeals  from  orders  and  all  the  business  which  will  be  shut 
off  by  the  limitations  proposed  by  this  ninth  section. 

Mr.  McLaughlin  —  Mr.   Chairman,   I  will  state  for  the  gentle- 


986  REVISED  RECORD.  [Tuesday, 

man's  information  that  I  argued  a  case  at  the  last  Saratoga  General 
Term,  in  September,  1893,  appeal  was  immediately  taken  to  the 
Court  of  Appeals  and  filed  two  days  after  the  calendar  was  made 
up.  That  case  is  not  yet  upon  the  calendar,  and  it  cannot  be  argued 
for  at  least  a  year  and  a  half. 

Mr.  Marshall  —  Is  it  a  preferred  case? 

Mr.  McLaughlin  —  No,  sir. 

Mr.  Marshall  —  I  think,  Mr.  Chairman,  that  the  gentleman  is 
mistaken  when  he  says  that  the  case  cannot  be  argued  within  a  year 
and  a  half.  I  have  frequently  argued  cases  in  that  court  within  six 
months  from  the  time  the  appeal  was  taken,  and  I  have  frequently 
found  that  they  were  reached  in  the  Court  of  Appeals  much  sooner 
than  I  was  ready  to  prepare  my  argument  in  those  cases.  The  fact 
is  that  there  must  necessarily  be  some  interval  of  time  between  the 
time  an  appeal  is  taken  and  the  time  when  a  case  is  finally  disposed 
of  in  the  Court  of  Appeals.  That  must  be  so  in  every  court. 

Mr.  Bowers  —  Mr.  Chairman,  I  would  like  to  ask  the  gentleman 
when  it  was  that  the  judges  of  the  Court  of  Appeals  stated  that 
they  could  transact  their  business? 

Mr.  Marshall  —  That  is,  with  the  limitation  of  the  amount  of 
business? 

Mr.  Bowers  —  When  and  where  was  that  stated? 

Mr.  Marshall — Before  the  Judiciary  Committee,  as  I  under- 
stand it. 

Mr.  Bowers  —  The  only  time  they  have  been  before  the  Judiciary 
Committee  was  weeks  and  weeks  before  we  reached  this  question. 

Mr.  Marshall  —  The  question  was  asked  whether  or  not,  if 
appeals  from  orders  were  shut  off,  and  if  cases  of  a  certain  character 
were  removed  from  the  jurisdiction  of  the  court,  the  court  would 
then  be  able  to  transact  its  business;  and  I  understood  the  judges 
who  appeared  before  the  committee  to  say  that  they  would  then  be 
able  to  dispose  of  the  business  without  any  increase  in  the  judicial 
force. 

Mr.  Bowers — Then  the  statement  you  refer  to  is  limited  to  the 
one  that  was  made  before  the  Judiciary  Committee? 

Mr.  Marshall  —  It  is. 

Mr.  McClure  —  Mr.  Chairman,  I  hope  this  amendment  will  not 
prevail.  I  noticed  by  the  judiciary  article  that  the  Appellate  Court 
of  the  Supreme  Court  judges  is  to  consist  of  seven  judges  in  the 
first  department,  and  five  in  each  of  the  other  departments,  four  to 
constitute  a  quorum  in  each.  That  being  so,  it  will  appear  at  once. 


August  21.]  CONSTITUTIONAL  CONVENTION.  987 

I  think,  to  the  gentlemen  of  this  Convention,  that  the  number  of 
judges  who  can  override  a  decision  rendered  by  the  Appellate  Court 
in  the  first  department,  in  which  seven  justices  concur,  should  not 
be  four  judges  of  the  Court  of  Appeals. 

Mr.  Marshall  —  Mr.  Chairman,  may  I  ask  the  gentleman  a  ques- 
tion? Has  Mr.  McClure  observed  that  under  the  provisions  of  the 
article,  as  framed,  only  five  judges  are  permitted  to  sit  at  any  one 
time  in  that  department;  so  that  there  will  never  be  seven  judges 
sitting  together  in  the  first  department? 

Mr.  McClure  —  Yes.  There  will  be  seven  judges  sitting  in  the 
Appellate  Division,  and  it  is  fair  to  assume  that  there  will  be  confer- 
ence with  the  others. 

Mr.  Marshall  —  No  more  than  five  shall  sit  is  the  language? 

Mr'.  McClure  —  That  is  the  language,  but  the  decision  of  the  five 
will  carry  the  concurrence  of  the  other  two  forming  part  of  the 
Appellate  Court.  But  even  if  it  is  five,  Mr.  Chairman,  it  certainly 
is  not  proper  that  the  decision  of  the  Supreme  Court,  General  Term 
judge,  affirmed  by  five  judges  of  the  Supreme  Court,  Appellate 
Court,  can  be  reversed  by  four  judges  sitting  in  the  Court  of 
Appeals,  as  that  court  is  now  constituted.  Let  me  illustrate  it  by 
a  case  within  my  own  experience.  I  went  to  the  Court  of  Appeals 
once  with  a  unanimous  decision  of  three  judges  of  the  General 
Term.  Six  judges  of  the  Court  of  Appeals  heard  the  appeal,  divided 
evenly,  called  in  a  justice  of  that  court  who  was  ill  and  unable  to 
read,  and  he,  judging  with  three,  reversed  the  decision  of  the  four 
judges  below,  and  successfully  opposed  the  decision  and  views  of 
the  three  judges  sitting  with  him.  In  other  words,  practically, 
three  judges  of  the  Court  of  Appeals  reversed  four  judges  of  the 
Supreme  Court  and  disposed  of  the  views  of  three  of  the  judges  of 
their  own  court.  Now,  in  any  view  of  the  case,  even  if  the  Supreme 
Court,  General  Term,  was  not  enlarged,  as  is  proposed  to  be  done 
by  this  judiciary  article,  the  Court  of  Appeals  should  be  a  larger 
body.  Under  their  rule,  four  judges  only  are  necessary  to  concur 
in  a  decision,  and  we  have  constantly  had  it  happen  that  four  of 
them  have  sat  and  reversed  the  decisions  of  unanimous  General 
Terms,  composed  of  three  judges,  which  decision  affirmed  the  decis- 
ion of  one  other  Supreme  Court  judge,  from  whose  decision  the 
appeal  was  taken  to  the  General  Term. 

I  do  not  see,  Mr.  Chairman,  how  the  business  of  the  court  will 
be  interfered  with  at  all.  It  seems  to  me  that  if  will  be  better  done. 
We  have  a  great  many  cases  decided  by  the  Court  of  Appeals 
where  the  decision  runs  four  to  three,  great  and  important  cases. 


REVISED  RECORD.  [Tuesday, 

Gentlemen  will  probably  remember  the  case  in  which  first  the  ques- 
tion of  damages  to  be  awarded  to  property  owners  in  the  city  of 
New  York  by  the  taking  of  easements  and  interfering  with  ease- 
ments by  the  elevated  road,  came  up,  and  the  court  had  to  wait  until 
Judge  Tracy  was  taken  into  it,  and  he  actually  made  the  decision 
of  the  Court  of  Appeals  upon  that  important  question.  The  ques- 
tion of  the  decision  on  the  will  of  Mr.  Tilden  was  disposed  of  by  a 
court  which  divided  four  to  three.  I  think,  Mr.  Chairman,  the 
chances  are  that  if  the  court  is  larger,  composed  of  nine  judges,  the 
majority  will  not  be  so  small  in  any  decision  that  is  rendered.  Of 
course,  it  can  be  five  to  four,  but  the  chances  are  that  the  majority 
will  be  greater  in  deciding  a  case  and  that  better  justice  will  be  done 
in  the  disposition  of  causes  heard  before  the  Court  of  Appeals. . 
How  will  it  retard  business?  Not  at  all,  in  my  judgment.  In  my 
own  experience  it  took  one  judge  of  the  Court  of  Appeals,  as  at 
present  constituted,  and  it  was  the  last  opinion  that  he  wrote,  nearly 
a  year  to  write  the  opinion  in  the  case,  because  it  required  such 
careful  examination  of  the  law  of  all  the  countries  in  the  world  that 
he  had  not  time  to  take  from  the  active  duties  of  the  court,  to  sit 
down  in  a  law  library  and  delve  into  the  abstruse  questions  which 
were  presented  to  him. 

Now,  if  the  court  is  composed  of  nine  judges,  one  judge  having 
a  case  requiring  so  much  examination  could  devote  himself  to  it, 
and  the  result  would  be  that  the  litigants  in  that  particular  case  and 
the  counsel  employed  in  it,  would  sooner  reach  a  decision  than  as 
the  court  is  now  fixed  and  settled.  I  am  in  favor,  sir,  of  the  pro- 
vision as  reported  by  the  Judiciary  Committee.  Something  has 
been  said  about  the  dignity  and  completeness  and  standing  of  the 
Court  of  Appeals.  I  do  not  think  that  the  fact  that  the  Supreme 
Court  of  the  United  States  is  composed  of  nine  judges,  and  has 
been  composed  of  nine  judges  for  so  many  years,  has  detracted  at 
all  from  the  dignity  or  the  force,  or  the  power  or  the  honor  of  that 
court,  and  I  cannot  see  how  the  Court  of  Appeals  of  the  State  of 
New  York,  if  standing  on  a  par  as  to  numbers  with  the  Supreme 
Court  of  the  United  States,  will  either  be  injuriously  affected  as 
to  their  individual  standing  or  as  to  the  influence  of  the  court.  L 
hope  the  amendment  will  not  prevail. 

The  question  as  to  the  limitation  of  matters  to  be  heard  by  the 
Court  of  Appeals  is  yet  in  embyro.  We  do  not  know  how  it  wijl 
result.  We  do  not  know  but  what  the  Legislature  and  the  people 
will  amend  this  section  so  as  to  carry  more  questions  to  the  Court  of 
Appeals.  I,  myself,  am  not  enthusiastic  about  the  limitation  of 
questions  that  shall  go  to  that  court.  I  think  every  man  ought  to 


August  21.]  CONSTITUTIONAL  CONVENTION.  989 

have  an  opportunity  to  have  the  Court  of  Appeals  hear  and  dispose 
of  his  case  finally,  and  it  may  be  that  this  provision,  limiting  the 
powers  of  the  Court  of  Appeals  and  enlarging  those  of  the  Appel- 
late Court  and  Supreme  Court,  will  not  even  prevail  here. 

Mr.  Cassidy  —  Mr.  Chairman,  I  offer  the  following  amendment 
to  the  amendment  offered  by  Mr.  Brown. 

Mr.  E.  R.  Brown  —  Mr.  Chairman,  the  amendment  offered  by 
the  gentleman  has  been  shown  to  me.  It  contains  one  verbal" 
change  in  the  amendment  offered  by  me,  and  I  think  it  is  a  more 
accurate  amendment  than  mine;  therefore,  I  accept  it.  It  is  merely 
one  verbal  change,  and  no  change  in  the  meaning  whatever. 

The  Chairman  —  Do  you  withdraw  your  amendment? 

Mr.  Brown  —  I  accept  Mr.  Cassidy's  as  a  substitute. 

The  'Secretary  read  the  amendment  as  follows : 

"  The  Court  of  Appeals  is  continued.  It  shall  consist  of  the  chief 
judge  and  associate  judges  now  in  office,  who  shall  hold  their  offices 
until  the  expiration  of  their  respective  terms,  and  of  their  success- 
ors. The  official  term  of  the  chief  judge  and  associate  judges  shall 
be  fourteen  years  from  and  including  the  first  day  of  January  next 
after  their  election.  Five  members  of  the  court  shall  form  a 
quorum,  and  the  concurrence  of  four  shall  be  necessary  to  a  decis- 
ion. The  court  shall  have  power  to  point  and  remove  its  reporter, 
clerk  and  attendants." 

Mr.  Cassidy  —  Mr.  Chairman,  I  am  in  favor  of  retaining  the 
Court  of  Appeals  as  it  now  exists.  The  two  things  the  people 
demand  are  economy  in  the  management  of  their  affairs  and  dis- 
patch in  the  management  of  their  business.  I  do  not  believe  that 
any  more  business  can  be  done  by  the  Court  of  Appeals  with  nine 
judges  than  with  seven.  On  the  contrary,  I  think  that  less  business 
will  be  done.  I  believe,  as  has  already  been  suggested,  that  it  will 
take  a  longer  time  to  consult  with  nine  judges  than  with  seven. 
And,  inasmuch  as  the  Judiciary  Committee  has  reported  adversely 
against  a  kaleidoscopic  court,  it  seems  to  me  there  is  no  necessity 
of  adding  two  other  judges.  However  honorable  these  positions 
may  be,  they  are  only  sinecure  positions,  and  the  amendment  is  not 
offered  in  the  interest  of  economy.  It  is  not  offered  in  the  interest 
of  dispatching  business  with  speed.  I  cannot  understand  why  the 
Court  of  Appeals  should  be  increased  to  nine  judges.  For  these 
reasons,  I  hope,  Mr.  Chairman,  that  the  amendment  will  prevail. 

Mr.  I.  S.  Johnson  —  Mr.  Chairman,  I  hope  the  amendment  will 
pass,  and  one  of  the  reasons  for  that  wish  is  the  fact  that  the  people 


990  REVISED  RECORD.  [Tuesday, 

are  watching  this  Convention.  They  are  to  pass  upon  the  acts  of 
this  Convention,  and,  although  it  has  been  the  custom  frequently, 
when  that  matter  has  been  suggested,  to  sneer  at  what  the  people 
may  think,  I  believe  it  is  time  that  we  should  consider  what  they 
will  think.  When  we  come  to  this  question  of  adding  two  judges 
to  the  Court  of  Appeals  the  question  will  be  asked  by  the  people, 
why  do  you  add  the  two?  Is  there  any  necessity  for  it?  Is  the 
business  or  will  the  business  of  that  court  be  in  such  a  condition  as 
to  require  additional  judges?  The  answer  will  come  from  the 
report  of  the  Judiciary  Committee  that  there  will  be  no  increase  of 
business.  The  answer  will  come  again  that  there  will  be  a  decrease 
in  business;  and  when  you  come  to  say  to  the  people  that  for  the 
purpose  of  doing  a  less  amount  of  business  you  are  going  to 
increase  the  court  by  two  members,  they  will  see  to  it  that  no  such 
amendment  is  finally  passed.  And  it  is  because  I  hope  the  action 
of  this  Convention  will  meet  with  the  approval  of  the  people  that 
I  am  in  favor  of  the  amendment. 

Mr.  Barhite  —  Mr.  Chairman,  I  am  in  favor  of  the  substitute 
offered  by  the  gentleman  from  Schuyler  (Mr.  Cassidy),  and  one 
reason  why  I  am  specially  in  favor  of  it,  is  because  it  does  away  with 
what  appears  to  me  to  be  one  of  the  most  pernicious  provisions  in 
the  report  of  the  Judiciary  Committee,  as  it  is  presented  to  this 
Convention,  and  that  is  the  provision  which  provides  for  minority 
representation  in  the  Court  of  Appeals.  Since  my  attention  has 
been  called  to  that  matter  I  have  spoken  to  several  members  of  that 
committee  as  to  that  point,  and  each  and  every  one  of  them  has 
said  to  me  that  it  is  a  matter  about  which  he  cares  nothing  at  all. 
It  is,  sir,  a  matter  about  which  they  should  care,  and  that  provision 
which  says  that  every  elector  only  should  vote  for  one  judge  should 
never  go  into  the  Constitution  of  this  State.  If  there  is  one  court 
above  all  others,  which  should  be  separate  and  apart  from  all  politi- 
cal or  other  improper  influences,  it  is  the  highest  court  of  this  State, 
the  court  whose  decisions  are  final.  It  is  a  court  which  should  look 
only  to  the  people,  from  which  it  springs  and  from  which  it  derives 
its  power.  But  it  is  possible,  under  this  provision,  as  it  has  been 
presented  by  the  Judiciary  Committee,  for  any  political  party  to 
nominate  a  man  who  is  objectionable  to  the  great  mass  of  the  people, 
or  who,  through  the  influence  of  what  is  commonly  called  the 
machine,  might  carry  the  strict  party  vote  at  the  polls,  and  it  would 
be  almost  an  impossible  thing  to  defeat  the  election  of  a  judge  of  that 
character.  Every  voter  of  the  State  of  New  York  should  not  only 
have  a  choice  in  one  judge,  but  he  should  have  a  choice  in  the  selec- 
tion of  every  judge  who  may  be  called  upon  to  pass  upon  his  rights. 


August  21.]  CONSTITUTIONAL  CONVENTION.  991 

If,  at  the  next  election,  under  this  provision,  the  Democratic  and  the 
Republican  parties  should  each  nominate  only  one  judge,  then,  as 
a  matter  of  course,  they  would  both  be  elected.  If,  on  the  other  hand, 
the  conventions  of  each  of  those  two  parties  should  nominate  each 
two  judges,  then  it  would  be  almost  impossible  to  defeat  the  vote 
of  any  one  party,  although  it  was  in  the  majority  between  its  two 
candidates,  so  that  the  people  might  be  sure  that  those  two  candi- 
dates would  be  elected.  It  is  for  this  reason,  sir,  that  I  am  in  favor 
of  the  substitute  that  has  been  offered,  and  I  believe  that  it  should 
prevail  upon  that  point  alone,  if  upon  no  other. 

Mr.  Dean  —  Mr.  Chairman,  I  move  to  strike  oue  of  section  7,  page 
6,  in  line  17,  all  after  the  word  "  article,"  to  and  including  the  word 
"  judge,"  in  line  18. 

If  it  was  the  intention  of  this  committee  to  pave  the  way  to  the 
election  of  Isaac  H.  Maynard  to  the  Court  of  Appeals,  it  could  not 
have  adopted  a  more  certain  way  of  accomplishing  that  end  than  is 
afforded  in  the  words  which  I  propose  to  strike  out.  It  does  not 
in  any  manner  affect  the  principles  of  this  report;  it  simply  preserves 
the  right  of  the  people,  by  a  majority  vote,  to  elect  the  judges  of  the 
Court  of  Appeals.  The  article,  as  it  is  reported,  proposes  that  two 
additional  judges  of  the  Court  of  Appeals  shall  be  elected  at  the 
first  general  election  following  the  adoption  of  this  Constitution, 
and  that  at  such  election  "each  elector  may  vote  for  only  one 
judge."  This,  in  effect,  makes  the  nominating  conventions  of  the 
two  great  parties  the  absolute  dictators  as  to  two  of  the  members  of 
the  Court  of  Appeals.  Suppose  the  Democratic  State  machine, 
still  anxious  to  pay  its  debt  of  gratitude  to  Isaac  H.  Maynard, 
should  decide  to  place  him  in  nomination  in  1895.  Under  this  pro- 
vision it  would  be  absolutely  impossible  to  defeat  him.  The  same 
thing  might  be  done  by  the  Republican  party,  through  the  force  of 
the  political  machine,  and  the  people  would  be  powerless.  The 
terms  of  judges  of  the  Court  of  Appeals  are  for  fourteen  years,  and 
we  cannot  afford  to  take  such  chances.  Personally,  I  am  a  parti- 
san; I  believe  that  partisanship  is  an  essential  element  of  patriotism, 
but  I  would  much  rather  two  Democrats  be  chosen  by  a  majority 
vote  of  the  people,  than  have  Isaac  H.  Maynard,  and  any  Republi- 
can who  could  be  mentioned,  chosen  by  this  cowardly  make-shift. 
If  it  is  necessary  to  violate  the  principle  of  the  rule  of  majorities 
for  the  sake  of  securing  Republican  representation  in  the  Court  of 
Appeals,  then  that  representation  is  purchased  at  too  high  a  price, 
and,  for  my  part,  I  am  opposed  to  it.  We  have  no  right  to  assume 
that  the  people  of  this  State  are  not  competent  to  choose  their 
judges,  and  the  question  of  their  party  affiliations,  and  especially 


992  REVISED  RECORD.  [Tuesday, 

under  the  operations  of  this  amended  article,  are  of  only  the  most 
incidental  importance.  As  a  rule,  the  people  have  jealously  regarded 
the  candidates  presented  for  judicial  offices,  and  we  ought  not  to 
prejudice  our  case  before  the  people  by  denying  to  them  the  right 
to  sit  in  judgment  upon  the  action  of  the  nominating  conventions. 
I  am  opposed  to  increasing  the  Court  of  Appeals;  I  do  not  believe 
that  the  working  efficiency,  or  the  strength  of  the  court,  will  be 
improved  by  the  addition  of  any  two  men,  and  certainly  not  by  men 
chosen  in  the  ordinary  State  convention  of  either  party,  if  that 
choice  is  not  to  pass  in  critical  review  before  the  voters  of  this 
State.  This  is  minority  representation  in  its  most  vicious  form, 
and  I  trust  that  this  magnificent  judiciary  article  will  not  be  marred 
by  this  blemish,  which  can  have  no  other  excuse  for  existence  than 
a  very  petty  conception  of  devotion  to  party.  The  absolute  integ- 
rity of  the  judiciary  is  of  far  greater  importance  than  any  question 
of  political  opinion  which  a  candidate  may  entertain,  and  we  cannot 
afford  to  violate  a  great  principle  for  the  sake  of  electing  a  very 
small  partisan  to  the  court  of  last  resort  in  this  State. 

Mr.  C.  B.  McLaughlin  —  Mr.  Chairman,  it  seems  to  me  that  we 
should  treat  this  question,  one  of  the  most  important  ones,  as  I  view 
it,  contained  in  this  report,  with  much  care.  It  has  been  the  experi- 
ence of  ever  practicing  lawyer  in  this  State  for  the  past  ten  years  that 
the  present  Court  of  Appeals,  as  now  constituted,  is  not  able  to  do 
the  work  which  is  sent  to  it;  and,  in  order  to  relieve  the  present 
Court  of  Appeals,  it  is  also  within  the  knowledge  of  every  practicing 
lawyer  in  the  State  that  the  Governor  lately  called  to  the  aid 
of  that  court  seven  judges  of  the  Supreme  Court,  under  the  demand 
that  was  made  by  lawyers  and  litigants.  Now,  how  do  the  gentle- 
men that  are  proposing  these  amendments  seek  to  relieve  the  court 
and  give  to  lawyers  and  litigants  the  relief  which  was  then 
and  is  now  demanded  all  over  the  State?  Why,  we  are  told  that 
a  limitation  has  been  placed  on  appeals  to  the  Court  of  Appeals. 
What  will  be  the  practical  result  of  such  limitation,  how  many 
appeals  it  will  prevent  from  going  to  that  court  is  a  mere  matter 
of  conjecture.  I,  for  one,  care  not  what  the  people  of  the  State  say 
as  to  seven  or  nine  judges,  if  I  have  performed  my  duty  in  this  body 
according  to  my  judgment.  I  care  not  what  the  court  itself  says 
upon  that  subject.  My  experience  has  been  that  there  is  seriously 
demanded  at  the  hands  of  this  body  some  relief  for  the  Court  of 
Appeals  of  the  State,  so  that  appeals  taken  to  that  court  can  be 
decided  with  care  and  with  dispatch.  Why,  just  look  at  the  situa- 
tion. According  to  a  report  made  to  us  by  the  clerk  of  the  Court 
of  Appeals  a  calendar  was  made  up  in  that  court  on  the  2d  of  Octo- 


August  21.]  CONSTITUTIONAL  CONVENTION.  993 

ber,  1893,  and  there  are  now  184  causes  undisposed  of.  There 
cannot  be  a  calendar  made  up  in  that  court  now  until  the  first  day 
of  January,  1895.  Appeals  taken  to  that  court,  after  the  2d  day  of 
October,  1893,  cannot  be  argued  until  after  the  ist  day  of  January, 
1895.  I  say  that  is  a  condition  of  affairs  which  ought  not  to  exist. 
It  is  practically  a  denial  of  justice.  A  delay  either  in  the  trial  of  a 
cause  or  in  the  argument  of  it  in  the  Appellate  Court  is  as  bad  as 
injustice  itself.  The  relief  proposed  by  this  committee,  I  believe, 
is  wise  and  practicable,  nine  jurors  instead  of  seven.  It  has  been 
a  very  serious  question  with  many  lawyers  whether  the  court  ought 
not  to  be  increased  to  fourteen,  so  that  there  could  be  two  courts 
sitting  to  dispatch  business.  But  the  method  proposed  by  this  report 
is  to  increase  it  to  nine.  Now,  gentlemen  need  not  stand  upon 
this  floor  and  argue  that  nine  judges  cannot  do  more  work  than 
seven,  because  we  know  that  it  is  not  true.  Seven  men  can  sit  in 
that  court,  two  of  them  can  retire  to-morrow,  if  you  please,  after 
having  heard  arguments,  two  more  can  take  their  places  upon  the 
bench  to-morrow,  the  two  that  have  retired  can  be  considering  the 
causes  which  were  argued  to-day. 

Mr.  Cassidy  —  Mr.  Chairman,  I  would  like  to  ask  the  gentleman 
whether  that  would  not  make  it  a  changing  court,  and  have  not  the 
Judiciary  Committee  reported  against  any  such  thing  as  that,  a 
kaleidoscopic  court,  "  now  you  see  it,  and  now  you  don't,"  changing 
around  all  the  time. 

Mr.  C.  B.  McLaughlin  —  Mr.  Chairman,  it  is  with  the  greatest 
pleasure  that  I  answer  the  gentleman's  question.  It  would  make 
it  no  more  of  a  sliding  court  than  you  have  with  seven.  I  have 
argued  causes  before  that  court  when  only  six  or  five  members 
were  present.  Was  that  a  sliding  court?  We  can  argue  causes 
there  with  seven,  and  the  two  additional  justices  will  help  dispatch 
the  business  there.  Now,  it  has  gone  out,  whether  true  or  false, 
and  this  is  no  reflection  upon  this  committee  or  upon  members  who 
advocate  the  seven  members  of  the  Court  of  Appeals;  the  senti- 
ment has  gone  forth  in  this  State  that  the  Court  of  Appeals  does 
not  want  but  seven.  It  was  claimed  that  the  Court  of  Appeals 
practically  controlled  the  commission  that  was  appointed  a  few 
years  ago  upon  that  subject,  and  we  went  before  the  people  of  this 
State  with  seven  judges,  and  what  was  the  result?  I  say  to  the 
members  of  this  Convention  that  I  believe  and  it  is  my  serious  con- 
viction, that  the  report  of  the  committee  upon  this  proposition 
should  be  adopted,  and  that  the  amendments  and  the  substitutes 
offered  should  be  defeated. 
68 


994  REVISED  RECORD.  [Tuesday, 

Mr.  Choate  —  Mr.  Chairman,  I  am  exceedingly  loath  to  differ 
in  any  particular  from  the  report  of  the  Judiciary  Committee, 
because  I  think  that  if  you  look  over  the  whole  history  of  legisla- 
tive bodies  since  their  work  was  done  by  committees,  it  would  be 
impossible  to  find  a  more  masterly  piece  of  work  than  this  has  been. 
At  the  same  time,  on  this  particular  point,  I  do  not  deem  that  the 
report  is  sustained  by  the  full  authority  of  that  committee.  As  one 
of  its  members  has  said,  they  are  divided  almost  equally  upon  it. 
It  is  one  that  this  Convention  ought  now  to  determine  fully  from 
their  own  point  of  view,  and  upon  the  consideration  that  it  is  one 
on  which  the  committee  was  finally  only  united  by  a  majority  of 
nine  to  eight,  and,  I  believe,  arrived  at  that  vote  after  very  serious 
dissension  and  controversy  among  themselves.  I  was  in  hope  that 
all  such  important  questions  as  this  might  be  deferred  until  all  the 
articles  have  been  read  through,  and  I,  therefore,  raised  the  point 
that  I  did,  upon  which  the  chairman  has  so  properly  ruled,  that  it 
must  be  decided  now,  once  for  all.  Now,  from  experience  and 
observation,  I  believe,  directly  contrary  to  what  has  been  asserted 
by  the  gentleman  from  Essex  (Mr.  C.  B.  McLaughlin),'that  you 
will  get  more  work  and  better  work  out  of  a  court  of  seven  judges 
than  out  of  a  court  of  nine;  that  they  will  decide  more  causes  and 
decide  them  better,  if  you  adhere  to  the  system  which  experience 
has  shown  to  be  so  nearly  satisfactory.  It  is  true  that  it  is  neces- 
sary to  relieve  that  body  of  some  of  its  work,  whether  it  is  consti- 
tuted of  seven  or  nine,  and  the  true  remedy  for  that  has  been  found 
by  the  Judiciary  Committee,  as  it  was  found  by  the  commission  that 
sat  here  in  1890,  to  be  so  to  strengthen,  enlarge  and  fortify  the 
intermediate  Appellate  Court  that  it  should  be  a  satisfactory  court 
even  for  the  final  termination  of  many  forms  of  controversy,  so  that 
the  proportion  of  causes  which  should  reach  the  Court  of  Appeals 
should  be  very  much  diminished.  I  asked  the  presiding  judge  of 
the  first  department  not  long  ago  how  many  of  its  controverted 
decisions,  as  the  law  then  stood  and  now  stands,  reached  the  Court 
of  Appeals,  and  he  told  me,  to  my  surprise,  not  over  two-thirds. 
I  believe  that  if  this  intermediate  appellate  system,  so  skillfully  and 
scientifically  devised  by  this  committee,  is  sustained  by  the  Conven- 
tion and  the  people,  that  the  proportion  of  the  appeals  which  will 
drift  through  to  the  Court  of  Appeals  will  be  very  much  dimin- 
ished. The  people  ought  to  be,  and,  in  my,  judgment,  will  be,  in  a 
very  much  larger  proportion  of  ordinary  causes,  satisfied  with  the 
decision  of  the  court  at  first  instance,  especially  when  it  is  affirmed 
unanimously  by  this  intermediate  Appellate  Court  of  five  judges, 
as  established  by  the  articles  already  passed  upon.  Now,  it  is 


August  21.]  CONSTITUTIONAL  CONVENTION.  995 

certainly  true  that  in  determining  a  question  like  this,  we  ought  not 
to  make  any  change,  unless  clear,  cogent  and  overwhelming  reasons 
can  be  pointed  out  for  it,  and  I  have  not  heard  any  proposition  yet 
stated  which  satisfies  me  that  the  change  from  seven  to  nine  is  an 
improvement.  It  is  only  a  change.  We  have  tried  a  court  of  seven 
now  for  twenty-four  years,  and  I  think  it  will  be  difficult  to  find  in 
any  jurisdiction  any  court  that  has  better  maintained  the  uniformity 
of  the  law  than  that  has  done,  or  given  better  laws  to  the  community 
over  which  it  presided,  no  matter  where  you  search,  among  the 
States,  in  the  federal  tribunals,  or  in  courts  abroad.  There  will  be 
vastly  more  dissension,  vastly  more  dissent  in  a  court  of  nine  judges 
than  there  has  been  found  to  be  in  a  court  of  seven;  and  I  think  it 
is  demonstrated,  if  you  will  compare  the  frequency  of  dissent  in  the 
Supreme  Court  at  Washington,  which  is  a  court  that  we  all 
admire  and  revere,  with  the  history  of  our  own  Court  of  Appeals 
for  the  last  seven  years.  It  has  been  said  and  urged  here,  with  a 
good  deal  of  force  or  a  good  deal  of  earnestness,  for  it  seemed  to 
me  that  there  was  not  much  force  in  it,  that  it  is  a  good  reason  for 
increasing  the  number  to  nine,  that  your  intermediate  Appellate 
Court  is  increased,  and  it  is  not  the  proper  thing  for  a  court  of 
seven  to  be  permitted  to  overrule  a  court  of  five,  because  they  may 
by  a  vote  of  four  to  three  overrule  the  unanimous  decision  of  a 
court  of  five.  Well,  Mr.  Chairman,  that  is  one  of  the  inevitable 
results  of  allowing  a  majority  to  rule  in  any  or  either  court.  In 
my  opinion,  judges,  like  witnesses,  should  be  weighed  and  not 
counted,  although  they  have  to  be  for  the  purpose  of  making  a 
quorum.  Now,  I  do  not  state  that  at  all  in  reference  to  any  of  the 
judicial  members  of  this  body,  because  if  it  were  applied  to  them 
they  would  all  feel  very  much  flattered  and  would  be  placed  at  the 
head  of  the  judiciary.  But,  truly  and  seriously,  what  you  want  and 
what  you  have  a  right  to  expect  is,  that  the  judges  of  the  Court  of 
Appeals,  elected  by  the  electors  of  the  whole  State,  will  be  a  body 
of  men  the  best  that  can  be  found ;  that  they  will  upon  the  average 
and  as  a  general  rule  be  superior,  a  superior  tribunal  in  fact  as  well 
as  in  name. 

It  has  been  well  said  by  the  chairman  of  the  Judiciary  Committee 
that  the  only  object  of  the  Court  of  Appeals  is  to  settle  the  law 
and  keep  it  settled,  and  keep  it  uniform,  so  that  not  the  suitors  only, 
the  litigants  only,  that  are  a  very  small  part  of  the  population  of 
this  State,  but  those  who  are  not  suitors  and  never  want  to  be,  and 
never  mean  to  be,  shall  know  what  the  law  is,  and  guide  their  con- 
duct accordingly  and  keep  out  of  litigation.  That  is  the  great  ser- 
vice, or  one  of  the  great  services,  that  this  Court  of  Appeals  has 


996  REVISED  RECORD.  [Tuesday, 

always  done  and  will  always  do.  Now,  we  are  going  to  have  four 
great  departments,  independent,  and  if  there  were  not  this  Court 
of  Appeals  to  rule  over  them,  it  would  be  like  four  independent 
States,  so  far  as  the  law  went,  and  my  opinion  is  that  the  past  has 
demonstrated  that  the  work  done  by  these  seven  judges,  as  they  have 
been  seven  always,  changed  from  time  to  time,  has  demonstrated 
that  for  the  purpose  of  maintaining  the  uniformity  of  the  law,  of 
keeping  the  citizens  of  this  great  State  informed  as  to  what  their 
rights  are  and  what  their  conduct  should  be,  it  has  been  a  tribunal 
that  could  not  be  exceeded  in  quality.  There  is  something,  no 
doubt,  in  seven  men  sitting  cheek  by  jowl  around  the  same  table, 
from  the  beginning  to  the  end  of  the  year,  and  so  on  from  year  to 
year,  through  ten  years,  fourteen  years,  and,  as  we  have  it  in  the 
Court  of  Appeals  now  in  several  instances,  for  twenty  years,  by 
which  they  understand  each  other's  minds,  and  are  enabled  to  work 
together  more  satisfactorily  than  any  strangers  could,  or,  as  I 
believe,  than  any  larger  number  of  men  could.  I  do  not  say  there 
is  any  magic  in  the  number  of  seven,  not  even  if  each  of  the  seven 
was  a  seventh  son  of  a  seventh  son,  but  experience  has  demon- 
strated that  in  that  which  is  their  peculiar  work  they  do  it  amaz- 
ingly well.  And  so,  as  it  seems  to  me  that  no  good  reason  has 
been  shown  for  this  change,  so  radical  a  change,  so  wide  a  departure 
from  the  established  system,  for  one,  I  am  opposed  to  it,  and  I  hope 
the  Convention  will  adopt  the  amendment  offered  by  Mr.  Brown, 
by  which  we  restore  the  original  number  of  seven. 

And  then  there  is  an  incidental  matter,  which  apparently  is  essen- 
tial to  this  development  of  the  seven  into  the  nine,  which  to  my  mind 
is  almost  as  objectionable  as  the  change  itself,  and  that  is  the 
change,  the  manner  in  which  the  seven  are  to  be  increased  to  nine 
at  the  first  election.  (Applause.)  I  do  not  mean  here  to  say  any- 
thing to  the  detriment  of  minority  representation,  because  I  think 
that  in  certain  matters  that  will  come  before  'this  Convention  it 
will  be  entirely  worthy  of  the  consideration  of  the  committee,  but 
I  do  say  that  for  the  particular  emergency  into  which  the  people  of 
this  State  will  be  brought  by  this  amendment,  if  adopted  in  this 
form,  raising  the  seven  to  nine,  and  at  the  coming  election,  at  which 
the  two  additional  judges  are  to  be  elected,  each  voter  to  vote  only 
for  one,  nothing  more  disastrous  could  be  presented  to  the  electors 
of  this  State.  Why,  Mr.  Chairman,  what  would  be  the  inevitable 
result? 

Mr.  Becker  —  Mr.  Chairman,  will  the  gentleman  permit  me  a 
question? 

Mr.  Choate  —  Certainly. 


August  21.]  CONSTITUTIONAL  CONVENTION.  997 

Mr.  Becker  —  Were  not  the  original  judges  of  the  present  Court 
of  Appeals  voted  for  in  that  identical  manner,  Judge  Folger  being 
one  of  them?  There  being  four  to  elect,  was  it  not  the  provision 
that  no  elector  could  vote  for  more  than  two. 

Mr.  Choate  —  Yes,  and  I  beg  that  my  friend  will  not  press  that 
matter  to  the  point  of  unmasking  the  entire  history  of  that  election. 
(Applause.)  What  I  say  is  this,  if  each  voter  is  to  vote  only  for  one 
of  the  two  in  this  emergency,  each  party  will  nominate  but  one,  and 
there  is  nothing  to  restrain  each  party  from  nominating  its 
worst  man,  and  the  nominees  of  both  parties  would  inevitably  be 
elected.  Now,  I  do  not  suppose  there  is  any  possible  answer  to 
that.  We  have  had  some  experience  where  the  feelings  of  the 
people  of  the  State  were  hotly  excited  on  the  subject  of  the  char- 
acter of  the  nominees  for  the  Court  of  Appeals.  No  man's  char- 
acter could  be  so  bad,  no  man's  reputation  could  be  so  bad,  but  that 
if  he  were  nominated  on  this  plan,  as  proposed  by  this  particular 
clause  to  which  I  object,  he  would  necessarily  be  elected.  Where 
both  parties  have  to  nominate  all  the  judges,  both  of  the  judges, 
both  parties  are  challenged  to  put  up  their  best  men,  and  they  will 
put  them  up.  Do  not  let  us  get  into  the  predicament  of  leaving  it 
at  the  tail  end  of  a  State  convention  of  either  party  for  the  name  of 
some  obscure  and  unworthy  man  to  be  thrust  in  as  the  candidate 
of  the  Court  of  Appeals,  and  his  election  thereby  guaranteed.  I 
hope,- Mr.  Chairman,  that  Mr.  Brown's  amendment  will  be  adopted. 
(Applause.) 

Mr.  Bowers  —  Mr.  Chairman 

Mr.  Bowers  was  recognized  by  the  Chair. 

Vice-President  Alvord  took  the  chair  and  announced  that  the 
hour  of  one  o'clock  having  arrived,  the  Convention  stood  in  recess 
until  three  o'clock  this  afternoon. 


AFTERNOON  SESSION. 

Tuesday  Afternoon,  August  21,   1894. 

The  Constitutional  Convention  of  the  State  of  New  York  met, 
pursuant  to  recess,  in  the  Assembly  Chamber,  in  the  Capitol,  at 
Albany,  N.  Y.,  Tuesday,  August  21,  1894,  at  three  o'clock  P.  M. 

President  Choate  called  the  Convention  to  order. 

Mr.  Cochran  —  I  ask  leave  of  absence  for  to-day  for  Mr.  Meyen- 
borg,  who  is  unexpectedly  detained  at  home. 


998  REVISED  RECORD.  [Tuesday, 

The  President  —  I  have  a  dispatch  from  Mr.  Towns,  making  the 
same  request. 

Mr.  Rowley  —  In  consequence  of  having  been  ill  last  Saturday, 
I  ask  to  be  excused  for  absence  on  that  day. 

The  President  put  the  question  on  the  requests  as  stated,  and  the 
delegates  were  severally  excused. 

The  President  —  The  Convention  will  be  in  Committee  of  the 
Whole,  and  Mr.  Acker  will  resume  the  chair. 

The  Convention  resolved  itself  into  Committee  of  the  Whole,  Mr. 
Acker  in  the  chair. 

Mr.  Acker  —  The  Convention  is  still  in  Committee  of  the 
Whole  under  general  order  No.  45,  and  at  the  time  of  taking  thfe 
recess  was  considering  section  7.  Mr.  Bowers,  of  New  York,  has 
the  floor. 

Mr.  Bowers  —  Mr.  Chairman,  the  situation  in  which  the  Commit- 
tee of  the  Whole  finds  itself  now  in  discussing  the  judiciary  article 
is  probably  the  most  serious  one  that  has  yet  been  reached.  A  very 
strong  expression  of  feeling  has  been  manifested  upon  the  floor  of  the 
House  in  favor  of  striking  out  the  two  additional  judges  proposed 
to  be  given  to  the  Court  of  Appeals  by  the  judiciary  article.  When 
the  committee  finds  itself  attacked  in  the  House  of  its  own  friends, 
and  finds  the  President  of  the  Convention  in  accord  with  the  gen- 
tleman from  Schuyler  (Mr.  Cassidy),  those  favoring  the  article  as 
reported  must  appreciate  that  the  clause  in  question  is  in  serious 
danger.  Some  reference  was  made  this  morning  by  the  gentleman 
from  Onondaga  (Mr.  Marshall)  to  the  proceedings  in  the  Judic- 
iary Committee  on  this  question  as  to  whether  the  Court  of  Appeals 
should  consist  of  nine  or  seven  judges.  It  is  impossible  to  verify 
accurately  the  statement  that  was  made  that  the  division  was  only 
by  one  vote,  or  rather  that  the  proposition  was  carried  by  a  majority 
of  only  one,  because  it  was  frequently  discussed,  and  more  than 
once  an  expression  of  opinion  was  taken,  and  some  of  the  records 
show  a  larger  vote  in  favor  of  the  nine  than  was  stated  to  the  Con- 
vention this  morning.  When  that  article  was  finally  adopted  it 
was  understood  that,  with  the  exception  of  two  or  three  expressed 
reservations,  the  article  embodied  the  views  of  the  committee.  It  is 
true,  Mr.  Chairman  and  gentlemen,  that  during  the  weeks  that  the 
article  was  undergoing  preparation  many  of  us  advanced  views  and 
supported  propositions  which  we  afterward  yielded;  and  that  some 
of  us  opposed  views  and  propositions  that  are  now  contained  in 
the  article.  But  we  finally  reached  the  conclusion  that  the  article 
as  a  whole  would  be  of  benefit  to  the  people  of  the  State  and  would 


August  21.]  CONSTITUTIONAL  CONVENTION.  999 

improve  the  administration  of  justice.  And,  as  I  understood  it, 
such  being  the  views  of  a  majority  of  this  committee,  we  came  into 
this  Convention  intending  to  sustain  it.  One  of  the  most  vital 
points  connected  with  the  entire  article  was  that  portion  which 
applies  to  the  Court  of  Appeals.  You  cannot  reduce  the  nine 
judges  to  seven  without  interfering  more  or  less  with  other 
propositions  which  were  accepted  by  many  of  the  members,  because 
of  the  fact  that  there  were  to  be  nine  judges.  It  could  be  justly 
claimed  by  members  of  that  committee  that,  while  they  had 
expressed  their  opinions  as  favoring  the  article  as  a  whole,  and  were 
therefore  in  common  honesty  bound  to  stand  by  it  until  some  seri- 
ous error  was  pointed  out  on  the  floor  of  this  Convention,  when 
there  was  once  a  break,  and  an  integral  part  of  the  proposition  was 
broken,  that  no  man  would  complain  if  each  of  us  went  to  work  to 
try  anew  to  get  into  the  article  the  pet  provision  we  may  have  lost. 
It  may  very  well  be  argued,  if  the  provision  for  nine  judges  is  to  be 
stricken  out,  and  we  are  to  have  but  seven,  that  then  there  should 
be  incorporated  into  the  article  a  provision  for  a  second  division  of 
the  Court  of  Appeals;  because  many  of  us  voted  finally  to  strike 
out  that  provision  in  the  belief  that  the  article  as  a  whole  would 
enable  the  Court  of  Appeals  to  do  its  business.  We  may  be  in 
error  in  the  views  we  held,  but,  for  my  own  part,  I  do  not  consider 
that  the  Court  of  Appeals  can  transact  all  the  business  it  ought  to 
transact  if  we  reduce  the  number  to  seven.  And  yet,  Mr.  Chairman 
and  gentlemen,  and  particularly  I  say  this  to  you,  my  associates 
on  the  Judiciary  Committee,  while  I  exceedingly  regret  that  the 
gentleman  from  Onondaga  (Mr.  Marshall)  has  seen  fit  this 
morning  to  renew  the  discussion  so  ably  carried  on  in  the 
committee  for  many  weeks,  whereby  he  would  seem  to  justify 
the  rest  of  us  in  again  presenting  the  propositions  we  fought  for 
there,  but  finally  yielded,  still,  for  my  own  part,  and  in  the  hope 
that  we  will  adopt  this  article  as  a  whole,  or  at  least  succeed  in 
holding  its  main  features,  I  shall  yield  any  relief  which  I  may  feel 
should  come  to  me  from  such  views,  and  I  shall  continue  to  sustain 
the  whole  article  from  beginning  to  end,  in  the  belief  that  we  have 
done  a  good  work,  and  a  work  which  will  be  considered  good  by 
the  people  of  the  State.  (Applause.) 

Now,  I  ask  you  to  bear  with  me  for  a  little,  while  I  point  out  the 
reasons  which  led  us  to  adopt  the  provision  with  respect  to  nine 
judges.  It  is  proper  that  I  should  say  at  the  outset  that  I  went  into 
the  committee  firmly  convinced  that  seven  judges  was  the  proper 
number.  I  listened  to  the  arguments  of  my  associates,  and  it  is  a 
true  saying  that  I  make  now  that  that  article  represents  the  views 


1000  REVISED  RECORD.  [Tuesday, 

of  no  one  man,  or  of  no  five  men,  or  of  any  other  part  out  of  the 
whole  seventeen  members  of  the  committee.  We  listened,  and  we 
learned;  we  yielded  views,  and  we  gained  knowledge,  and  the  whole 
work  is  the  work  of  the  whole  seventeen.  We  knew  at  the  outset 
that  the  greatest  difficulty  in  the  administration  of  justice  in  this 
State  was  because  of  the  blocking  of  the  calendars  in  the  court  of 
last  resort.  We  knew  that  in  the  courts  below  the  people  could  add  to 
the  judges  to  any  extent  to  enable  them  to  do  the  work  that  might 
•come  before  the  courts.  We  knew  that  in  the  Appellate  Division 
we  could  afford  to  have  differences  of  opinion  so  long  as  there 
•existed  a  final  tribunal  to  determine  questions  of  law  for  the  guid- 
.ance  of  the  courts  beneath  them.  We  all  appreciated  that  some- 
thing must  be  done  to  relieve  the  Court  of  Appeals.  It  was  a  piece 
•of  legislation  that  might  well  try  the  broadest  minds.  It  has  been 
worked  upon  time  and  again,  and  all  sorts  of  expedients  have  been 
suggested.  And  so  it  was  that  after  long  consideration  it  was  con- 
•cluded  that  the  Court  of  Appeals  should  be  limited  to  the  decision 
•of  questions  of  law;  that  court  is  in  practice  so  limited  now,  for  that 
is  to-day  the  assumed  rule  in  that  court.  We  proceeded  to  strike 
out  appeals  from  interlocutory  orders.  But  that  will  give  very  little 
relief.  After  long  discussion  and  at  the  very  close  of  the  proceed- 
ings, we  also  put  in  the  clause  intended  to,  and  which  we  believe 
will,  give  relief,  providing  in  certain  classes  of  cases  that  the  Court 
•of  Appeals  shall  not  be  called  upon  to  determine  whether  there  was 
sufficient  evidence  to  justify  a  finding.  We  felt  that  with  these 
provisions  (which  are  substantially  all),  that  by  increasing  the  force 
of  judges  to  nine,  thereby  relieving  them  somewhat  in  their  work 
and  enabling  them  to  perform,  as  we  felt,  better  and  more  sub- 
stantial work,  we  had  offered  to  this  Convention  a  solution  of  the 
problem,  and  that  we  could  afford  to  dispense  with  the  second 
division.  Now,  the  main  argument  that  has  been  made  against 
the  continuance  of  the  nine  judges,  which  we  propose,  was  based 
upon  the  theory  that  nine  men  will  not  do  any  more  work  than 
seven.  We  have  heard  many  speakers  upon  that  question,  but  they 
have  discussed  very  little  the  more  controlling  proposition,  and  the 
one  which  led  me  to  adopt  the  views  of  the  majority  of  the  commit- 
tee. Whether  seven  or  nine  could  do  the  most  work  may  possibly 
be  a  matter  of  doubt,  but  the  chances  are  certainly  in  favor  of  the 
nine  doing  the  more  work.  It  prevents  the  court,  by  reason  of  the 
sickness  of  one  or  two  members,  being  practically  cut  off  from  sit- 
ting; it  enables  better  and  more  extended  conferences,  and  permits 
rest  sometimes  to  members  of  the  court.  But  when  the  gentle- 
man from  Erie  (Mr.  McMillan)  called  our  attention  to  the  fact 


August  21.]  CONSTITUTIONAL  CONVENTION.  IQOI 

that  if  we  should  make  courts  of  appellate  jurisdiction  with  five 
judges,  who  could  sit  and  could  join  in  the  decisions,  and  left  four 
judges  in  the  Court  of  Appeals  (against  a  minority  of  three)  to 
overrule  the  five  appellate  judges,  it  would  present  to  the  people  of 
the  State  the  spectacle  of  four  judges  determining  a  proposition 
antagonistic  to  eight  judges  who  in  all  human  probability  would 
be  quite  the  equals  of  the  four,  it  seemed  impossible  to  present  it 
to  the  Convention  or  to  the  people  of  the  State.  It  is  true  that, 
even  with  nine  judges,  five  may  differ  with  the  other  four,  and  the 
same  result  to  a  great  extent  be  reached,  but  it  would  happen  much 
less  frequently,  and  at  least  we  would  be  able  to  say  that  there  was 
not  the  power  in  four  men  to  reverse  five  men.  I  think  this  argu- 
ment cannot  be  brushed  aside.  I  do  not  think  that  the  great  regard 
•we  have  for  our  present  Court  of  Appeals  justifies  us  in  adopting  a 
judiciary  article  which  provides  for  any  such  result.  I  do  not 
believe  that  there  is  to  be  found  a  single  precedent  where  a  less 
number  of  judges  can  reverse  those  whose  decisions  go  up  to 
them  for  review.  We  had  brought  before  us  the  precedent  of  the 
Supreme  Court  of  the  United  States.  They  sit  with  nine  judges, 
and  I  am  bound  to  say  that  it  is  the  court  that  stands  the  highest 
in  the  land.  There  has  been  much  said  about  the  ease  with  which 
the  Court  of  Appeals  does  its  work.  Perhaps  they  do  it  too  easily. 
I  understand  that  the  system  of  procedure  (and  this  was  laid  before 
us  in  the  Judiciary  Committee)  in  the  Court  of  Appeals  is  for  cer- 
tain judges  to  be  designated  to  write  the  opinions  in  the  cases  as 
they  come  along  in  rotation,  and  without  an  assignment  after  dis- 
cussion, the  assignment  being  made  before  discussion.  I  doubt  if 
that  is  the  best  system.  In  the  Supreme  Court  of  the  United 
States  the  cases  are  heard,  discussed  and  determined,  so  far  as  they 
can  be  determined  in  advance  of  the  opinion,  and  then  a  judge  is 
assigned  to  write  an  opinion.  Of  the  two  courses  I  prefer  the  lat- 
ter, even  though  it  does  lead  to  some  discussion.  It  has  been  said 
upon  the  floor  of  this  Convention  that  the  bare  majority  in  the 
Judiciary  Committee,  who  reported  this  part  of  the  article,  cannot 
be  treated  with  the  same  force  and  effect  as  if  it  had  been  a  unani- 
mous report.  Perhaps  that  may  be  so ;  and  yet  it  was  the  judgment  of 
the  committee  as  a  whole,  and  quite  as  good  a  judgment  as  the  vote 
of  the  four  judges  in  the  Court  of  Appeals  who  shall  overrule  their 
associates.  That  is  treated  as  a  final  judgment.  That  judgment 
we  are  to  make  binding  forever  upon  litigants,  even  though  they 
have  had  five  appellate  judges  with  them  in  the  court  below,  to  say 
nothing  of  the  judge  who  sat  at  Circuit  or  at  Special  Term,  as  the 
case  may  be. 


1002  REVISED  RECORD.  [Tuesday, 

I  have  thus  stated,  as  briefly  as  I  am  able,  some  of  the  controlling 
arguments  which  led  to  this  report  in  this  regard.  I  cannot  pass, 
aside  from  the  article,  without  a  reference  to  the  provision  which 
seems  to  be  more  controlling  upon  members  of  the  Convention  than 
any  other,  and  that  is  the  provision  for  minority  representation. 
That  particular  provision,  as  I  recall  it,  was  inserted  in  the  article  in 
the  belief  that  it  might  lead  the  people  of  the  State  to  more  readily 
accept  the  article.  No  one  of  the  committee  was  specially 
strenuous  for  it,  and  I  do  not  think  it  would  be  fair  to  dispose  of 
the  more  serious  question  as  to  the  number  of  judges  by  consider- 
ing the  two  questions  at  the  same  time.  We  should  separate  them. 
I  believe  that  a  majority  of  the  members  of  the  Judiciary  Committee 
will  be  quite  willing  in  consideration  of  the  views  which  have  been 
enunciated  here  to-day  to  assent  to  that  particular  clause  being 
stricken  out;  and  yet  I  could  not  but  think  this  morning  as  I  listened 
to  the  plea  of  our  President,  in  which  he  called  attention  to  the  wrong 
and  disorder  that  might  come  from  the  nomination  of  unfit  men  for 
those  places  on  any  such  a  principle,  that  he  was  to  some  degree  in 
error  in  some  of  the  other  pet  theories  in  which  he  endeavored  at  the 
time  to  protect  himself.  We  now  feel  that  his  declaration  was  the 
death  blow  to  minority  representation,  for  it  must  be  conceded  that 
you  get  no  better  class  of  men  to  divide  up  the  offices  when  you 
go  into  the  wards  to  nominate  aldermen.  I  cannot  imagine  that 
our  gifted  President,  our  fair-minded  President,  made  that  proposi- 
tion because  he  had  any  idea  of  its  working  to  the  political  advan- 
tage of  any  party.  And,  therefore,  taking  his  proposition  as  it  dis- 
tinctly conies,  let  this  Convention  then  understand  that  we  will  do 
away  with  all  propositions  as  to  minority  representation,  and  let  all 
men  stand  upon  their  character  when  they  go  before  the  people 
asking  office  at  their  hands.  I  am  most  willing  that  this  should 
be  stricken  out  at  this  particular  point  because  it  will  enable  us  to 
vote  upon  the  more  serious  question  which  is  involved,  as  to  the 
number  of  judges  that  are  to  be  given  to  that  court. 

I  trust  that  the  question  of  expense  is  not  to  enter  into  these 
deliberations.  The  salary  of  these  additional  judges  will  be  but  a 
very  small  matter.  It  is  not  a  matter  that  can  or  will  affect  the 
people.  Those  questions  of  expense  are  better  addressed  to  the 
question  of  the  new  Supreme  Court  judges  whom  we  propose  to 
elect. 

It  is  not  my  place  to  make  criticism  upon  the  present  Court  of 
Appeals.  It  is  a  good  court  —  doubtless  quite  as  good  a  court  as 
the  language  of  the  gentleman  from  Onondaga  (Mr.  Marshall),  or 
the  language  used  by  the  President  of  this  Convention,  justifies  you 


August  21.]  CONSTITUTIONAL  CONVENTION.  1003 

in  believing;  and  I  listened  with  great  pleasure  to  the  President's 
suggestion  as  to  the  manner  in  which  the  decisions  of  that  court 
are  received  by  the  people  of  this  State,  because  I  had  in  mind- 
that  a  few  years  since  he  took  part  in  the  argument  of  some  political 
cases  before  that  court,  in  the  decision  of  which  they  very  largely 
divided  upon  political  lines,  and  I  have  waited  until  to-day  for  a 
certificate  from  a  man  so  prominent  in  the  councils  of  his  own  party 
that  in  all  cases  they  gave  us  good  law. 

There  may  be  other  questions  discussed  concerning  this  court. 
There  may  be  others  in  this  Convention  who  will  bring  to  your 
attention  some  curious  decisions  that  have  been  made  there  at  times,, 
as  having  some  bearing  upon  our  judiciary  article;  and  I  am  by  no> 
means  prepared  to  say  that  that  court  will  be  at  all  injured  by  the 
infusion  into  it  of  some  new  blood,  even  if  we  take  that  new  blood 
from  members  of  the  bar  in  the  State  at  large. 

I  could  not  understand  the  President's  reference  this  morning, 
when  speaking  with  Mr.  Becker,  as  to  his  not  wishing  to  be  pressed 
further  on  some  particular  question.  Is  it  not  true  that  members 
of  that  court,  or  at  least  those  who  were  originally  elected,  are  still 
sitting  and  adorn  the  bench?  Certainly  he  could  not  have  intended 
a  criticism  upon  that  court  after  the  magnificent  tribute  he  gave  it. 

And  now  to  you,  gentlemen  of  the  majority,  let  me  say  that  this 
report  has  been  as  honest  a  piece  of  work  as  was  ever  presented  to  a 
body.  There  has  been  no  effort  except  to  get  a  good  judiciary 
article.  It  rests  largely  with  you  whether  you  will  break  it  down 
in  any  integral  part,  or  whether  you  will  send  it  out  to  the  people  of 
the  State  as  one  of  the  good  pieces  of  work  which  you  intend  to 
give  them. 

And  to  my  associates  in  the  minority,  while  undoubtedly  there 
will  be  differences  of  opinion,  I  beg  them  to  give  to  this  question 
some  part  of  the  careful  consideration  that  was  given  it  in  the 
Judiciary  Committee,  before  they  strike  this  blow  which  will  break 
up  the  symmetry  of  the  entire  article.  (Applause.) 

Mr.  Becker  —  Mr.  Chairman,  long  before  I  came  to  this  Conven- 
tion I  saw  it  discussed  in  the  legal  periodicals  of  this  State,  and 
heard  it  discussed  among  the  profession,  as  to  what  was  best  to 
be  done  to  relieve  the  Court  of  Appeals  from  the  pressure  of  busi- 
ness upon  it.  It  was  stated  (with  how  much  truth  I  am  not  here  to 
determine,  for  the  facts  concerning  it  are  known  to  all  the  members 
of  the  bar,  who  perhaps  are  a  very  large  majority  of  this  Conven- 
tion), that  the  expediency  of  providing  what  has  been  termed  a 
safety-valve  in  the  way  of  a  second  division  of  the  Court  of  Appeals 
to  take  care  of  the  surplus  work  that  accumulates  on  the  calendars 


1004  REVISED  RECORD.  [Tuesday, 

of  that  court  was  not  entirely  satisfactory.  For  my  part,  I  do  not 
join  entirely  in  that  feeling.  I  think  one  of  the  principal  objections 
to  that  came  from  the  fact  of  the  method  in  which  the  judges  of 
that  court  were  selected,  which  took  away  from  districts  of  this 
State  a  part  of  their  working  force  of  judges.  I  heard  it  discussed 
also  to  a  considerable  extent  as  to  what  was  the  best  remedy.  I 
read  with  care  what  I  could  gather  in  the  public  prints  of  debates 
and  work  of  the  commission,  and  was  very  much  surprised  to  learn 
at  the  close  of  its  discussions  that  its  debates  and  discussions  were 
not  to  be  printed,  but  were  (as  our  distinguished  President  has,  from 
time  to  time,  characterized  certain  propositions  and  documents 
which  came  before  this  Convention),  to  go  into  the  archives.  I 
found  on  an  examination  somewhat  of  the  personnel  of  the  com- 
mission that  it  was  composed  of  those  who  were  no  doubt  the  ablest 
practitioners  and  lawyers  of  this  State,  or  among  the  ablest.  And 
yet  it  was  largely  composed  of  those  whose  business  was  centered 
in  the  great  cities,  and  of  ex-judges,  and  of  —  may  I  say  it  with 
bated  breath  —  those  who,  perhaps,  were  more  or  less  supposed  to 
be  under  the  domination  and  control  of  the  judges  of  our  highest 
appellate  court.  That  was  evidenced  by  the  fact  that  a  judge  who 
had  but  just  then  retired  from  the  bench  of  the  court  was  imme- 
diately chosen  the  president  of  that  commission.  This  subject 
was  discussed  there  very  fully.  The  commission  divided  itself,  as  I 
think  members  of  the  profession-  in  this  State  divide  themselves,  into 
two  lines  or  branches  upon  this  question.  A  very  considerable  num- 
ber of  the  members  of  that  commission,  no  matter  what  the  final 
vote  was,  were  of  opinion  that  the  sole  remedy  and  the  best  remedy 
to  apply  to  lift  the  great  burden  was  to  put  on  more  men  to  lift  it; 
and  that  the  best  way  to  reorganize  the  judiciary  system,  or  the 
Court  of  Appeals,  at  least,  was  to  make  a  large  court,  or  a  compara- 
tively large  court,  and  then  let  everybody,  from  the  highest  to  the 
lowest,  go  there  with  their  cases.  That  view,  however,  did  not 
prevail  in  the  commission  and  they  decided  to  keep  the  numbers 
of  the  Court  of  Appeals  substantially  as  they  were,  and  to  attach 
to  the  right  of  appeal  limitations  which  would  have  diametrically 
the  opposite  effect  to  that  of  permitting  suitors  to  go  there  with 
their  cases,  to  wit,  of  limiting  the  appeals.  During  the  pendency 
of  that  discussion,  and  afterward  through  the  medium  of  the  State 
Bar  Association,  a  vote  was  taken  by  postal  card  of  a  very  consider- 
able number  of  the  members  of  the  bar  of  this  State  —  the  simple 
question  suggested  on  the  card  being :  "Are  you  in  favor  of  increasing 
the  number  of  judges  of  the  Court  of  Appeals?  "  The  answers  came 
back  in  a  vote  of  almost  two  to  one  that  they  were  not  in  favor  of 


August  21.]  CONSTITUTIONAL  CONVENTION.  1005 

such  an  increase.  So  that  when  I  came  to  the  consideration  of  this 
matter  personally,  charged  with  the  responsibility  of  my  duty  as  a 
delegate  here,  I  was  myself  very  strongly  of  the  opinion  that  the 
remedy  for  the  existing  evils  was  to  increase  by  a  considerable  num- 
ber the  members  of  the  Court  of  Appeals.  My  own  preference  was 
not  to  have  a  divided  court,  a  double-headed  court,  as  the  expres- 
sion has  been,  although  I  do  not  think  that  in  practice,  if  upon  a 
dissent,  a  question  were  submitted  to  the  whole  court,  there  would 
be  any  breaking  down  in  the  efficiency  of  the  court,  or  any  lessen- 
ing of  the  respect  in  which  its  decisions  would  be  held  by  the  bar 
or  the  people;  but  I  was  of  the  opinion  that  what  has  been  so  aptly 
termed  here  a  kaleidoscopic  court  would  perform  all  the  work  to  be 
performed  adequately,  if  there  were  a  sufficient  increase  of  members 
of  the  court,  so  that  a  part  of  the  court  could  be  sitting  and  hearing 
arguments,  and  the  other  part  be  writing  opinions,  and  then  keep 
the  court  in  practically  continuous  sessions,  and  without  the  recesses 
which  now  take  place  from  time  to  time,  of  a  month  or  so, 
to  permit  the  judges  to  go  home  and  get  into  their  libraries  and 
write  out  their  opinions.  I  thought  that  in  that  way  the  work  would 
be  done  efficiently  and  well,  and  that  the  homogeneity  of  the  court 
would  be  preserved,  and  the  unity  and  force  of  its  decisions  main- 
tained. This  matter  was  discussed  in  the  Judiciary  Committee 
from  almost  the  first  day  to  the  last  day  in  its  consideration  of  this 
question.  I  was  very  strongly  opposed  to  the  limitations  suggested, 
except  the  limitation  of  the  right  to  appeal  from  orders  involving 
solely  questions  of  practice.  But  after  hearing  arguments  pro  and 
con,  and  after  giving  the  matter  earnest,  conscientious  and  careful 
consideration,  it  seems  to  me  that  if  a  moderate  limitation  could  be 
imposed  so  that  the  court  would  be  preserved  as  the  final  appellate 
tribunal  on  questions  of  law  (which  I  hope  the  provision  inserted 
in  the  article  by  way  .of  limitation  will  bring  about),  that  was,  per- 
haps, the  proper  means  for  relief  in  the  long  run.  But  there  are 
other  considerations  still  existing,  notwithstanding  the  fact  that 
this  limitation  has  been  placed  in  this  article,  and  which  limitations 
may  or  may  not  work  as  we  believe,  and  as  we  hope  they  will.  You 
all  know  what  judge-made  law  is;  you  all  know  how  these  statutes 
are  construed,  and  especially  in  interpreting  the  jurisdictional  right 
to  consider  cases  how  apt  it  is  to  occur,  and  how  often  it  does  occur, 
that  such  a  construction  is  placed  upon  a  statute  that  its  scope 
and  effect  is  very  much  broadened.  It  may  be,  and  I  am  now 
inclined  to  hope  that  it  will  not  be,  that  these  limitations  may  work 
as  successfully  in  restricting  appeals  as  the  framers  of  them  hope; 
but  such  as  they  are  they  are  practically  the  united  judgment  of 


1006  REVISED  RECORD.  [Tuesday, 

the  committee;  and,  for  my  part,  I  have  accepted  them  in  the  com- 
mittee and  am  willing  to  accept  them  here.  But,  in  view  of  the 
fact  that  they  may  not  do  what  they  are  expected  to  do,  the  ques- 
tion still  exists  whether  some  moderate  increase  of  the  members  of 
the  Court  of  Appeals  should  not  be  made.  I  want  to  take  my  stand 
here  boldly  and  courageously  (for  I  know  that  the  members  of  this 
Convention  who  are  lawyers,  as  well  as  those  who  are  not  lawyers, 
will  respect  one  who  has  the  courage  of  his  convictions)  side  by  side 
with  my  friend,  Mr.  Bowers,  upon  the  proposition  that  that  court 
needs  new  blood.  It  seems  to  me  that  in  the  current  of  its  deci- 
sions upon  some  of  the  greatest  and  most  important  questions  of 
the  day  I  can  read  the  crystallizing  around  one  or  more  members  of 
this  court  (one  or  two  members  better  expresses  it)  of  the  other 
members  of  the  court,  in  certain  very  marked  lines  of  differentiation 
of  opinion.  It  is  not  necessary,  and  perhaps  would  not  be  proper,  to 
cite  particular  cases  in  which  this  has  occurred,  but  it  seems  to  me 
it  is  likely  to  continue  to  occur  in  the  future;  but  I  recognize  in  the 
remark  of  our  distinguished  President  that  these  gentlemen,  living 
together  and  practically  existing  as  a  unit,  each  mind  rubbing 
against  mind  —  I  recognize  the  invariable  condition  which  will 
occur  under  such  circumstances;  namely,  that  one  or  more  of  the 
stronger  wills  and  stronger  minds  become  the  dominant  and  con- 
trolling forces  of  the  body  in  which  those  minds  are  acting.  It  may 
be  that  that  is  a  consideration  for  good,  as  is  contended  here,  in 
some  directions,  at  least,  in  the  unification  and  preservation  of  a 
system  of  law  interpreted  by  the  highest  court;  and  it  may  work  to 
the  very  best  advantage  to  our  citizens  and  of  our  State.  But  I  am 
inclined  to  think  that  with  the  judges  who  we  are  now  making  in 
the  Constitution  of  the  Appellate  Court  —  or  are  endeavoring  to 
make  —  and  with  the  new  and  modern  questions  which  are  con- 
stantly coming  before  that  court  for  interpretation  and  final  adjudi- 
cation, no  harm  can  occur,  but  much  good  may  occur  if  some  new 
blood  be  infused  into  its  organization. 

That  ought  to  be  a  controlling  consideration  in  this  connection. 
I  yield  to  no  man  in  the  respect  which  I  feel,  and  which  I  am  proud 
here  and  now  to  express,  for  the  integrity  of  that  court.  I  am 
pleased  to  state,  in  answer  to  the  remark  made  by  Mr.  Bowers,  that 
on  some  of  the  political  questions  at  least  which  have  come  before  it 
the  court  has  not  divided  on  strict  lines  of  partisanship.  But  on 
other  questions,  on  questions  relating  to  the  rights  of  the  great 
corporations,  which  practically  control  the  legislation  of  this  State, 
questions  arising  upon  the  rights  of  the  laboring  men  which  are  to 
come  up  very  soon  before  that  court  for  its  ultimate  decision,  ques- 


August  21.]  CONSTITUTIONAL  CONVENTION.  1007 

tions,  affecting  the  right  to  combine  on  the  part  of  laboring  men, 
and  the  equal  right  on  the  other  hand  of  organizations  of  capital  to 
combine,  and  on  questions,  such  as  were  raised  in  the  grain  elevator 
cases,  of  the  right  of  this  State  to  step  into  the  arena  of  busi- 
ness and  declare  what  rights  shall  be  vested  in  corporations  which 
are  not  essentially  public  in  their  functions,  it  is  for  the  settlement 
of  those  and  kindred  questions  that  I  for  one  am  desirous  that  new 
and  entirely  uncontrolled  voices  shall  be  heard  in  that  tribunal.  I 
believe  that  times  are  changing,  as  this  Convention  has  evidenced 
in  the  matter  of  amendments  which  it  has  either  voted  on  or  is  to 
vote  upon,  that  the  era  of  reform  is  at  hand  in  many  respects;  and 
that,  therefore,  it  is  highly  important  that  the  members  of  this 
great  tribunal,  which  will  have  the  final  decision  and  the  legal 
construction  of  these  propositions,  shall  have  infused  into  it  some 
considerable  portion  of  modern  ideas,  of  modern  views  and  of 
modern  training.  The  members  now  composing  that  court  have 
been  elected,  or  re-elected  if  you  please,  in  such  manner  that  there 
have  been,  with  a  single  exception,  little  or  no  new  additions  to  its 
judiciary  force  for  a  considerable  period  of  time;  and  to  my  mind, 
considering  this  matter  as  carefully  and  fully  as  I  have,  and  aband- 
oning as  I  have  my  original  belief  that  a  larger  court  for  the  hearing 
of  appeals  upon  all  subjects  was  the  best  for  our  people,  when 
coupled  as  was  proposed  with  certain  limitations,  I  hope  and  pray 
that  this  one  opportunity  for  the  citizens  of  the  State  to  increase 
somewhat  the  force  of  that  court  for  the  purpose  of  doing  its 
business,  and  to  change  somewhat  the  control  and  domination 
which  certain  men  have  exercised  over  it  in  certain  lines  of  judicial 
thought  and  action,  will  now  be  brought  about.  I,  for  one,  do  not 
agree  with  the  proposition  of  the  President  of  this  Convention  in 
which  he  says,  or  intimates,  that  dissent  is  not  desirable.  I  think 
on  many  of  the  great  questions  that  come  before  the  court  dissent 
is  not  only  desirable,  but  is  inevitable.  As  long  as  human  minds 
differ  there  will  be  dissents  in  tribunals.  Under  those  conditions 
I  believe  that  in  cases  of  dissent  there  is  a  prospect,  under  this 
amendment,  that  a  more  considerable  number  of  judges  may  be 
found  in  the  majority.  At  present  it  is  not  infrequently  the  case,  in 
fact  it  is  very  often  the  case,  that  when  that  court  has  divided  in  the 
past,  and  as  it  is  now  divided  from  time  to  time,  that  you  find  it 
divided  by  a  vote  of  four  to  three,  and  if  you  find  out  who  wrote  the 
opinion  of  the  majority  you  will  be  pretty  certain  to  know  who 
wrote  the  opinion  of  the  minority.  1  desire  to  have  that  broken 
down  to  a  certain  extent,  and  I  do  not  know  of  any  way  in  which  it 


I0o8  REVISED  RECORD.  [Tuesday, 

can  be  so  effectually  broken  down  as  by  the  infusion  of  new  and 
modern  ideas  into  that  court. 

The  argument  of  economy  does  not  strike  me  very  favorably.  As 
stated  by  Mr.  Bowers  the  increase  in  the  number  of  its  judges  will 
not  materially  increase  the  expense  when  divided  amongst  the  tax- 
able property  of  the  State.  And,  gentlemen  of  the  Convention, 
there  is  no  doubt  that  the  iniquitous  system  of  pensioning  these 
judges  will  be  stricken  out.  If  it  is  not  done  by  the  very  section 
proposed  by  this  committee,  it  will  be  done  by  amendments  that 
have  been  heretofore  proposed  in  this  Convention,  and  which  are 
now  before  the  committee  for  its  consideration.  By  striking  out 
that  provision  we  shall  save  many  times  more  than  the  additional 
salaries  of  these  judges  will  amount  to. 

I  feel,  too,  that  there  is  a  great  deal  of  force  and  effect  in  the  argu- 
ment of  convenience  which  has  been  suggested.  Once  it  was 
my  fortune  to  go  to  that  court  with  what  I  believed  to.be  an 
important  question,  a  matter  to  which  I  had  devoted  many  days  or 
weeks  of  preparation,  only  to  find  five  of  the  judges  on  the  bench, 
two  of  whom  at  General  Term  had  considered  the  same  question. 
Many  times  it  has  happened  in  my  own  practice  in  the  General 
Term,  that  one  or  two  judges  were  absent  or  disqualified.  You 
cannot  explain.  You  are  there,  and  you  have  got  to  take  what  they 
give  you.  You  oftentimes  find,  as  I  have,  that  that  was  caused  by 
the  sickness  of  some  members  of  the  court,  or  by  the  pressing 
engagements  elsewhere  of  one  or  more  of  them.  At  present  the 
chief  justice  of  the  court,  worn  out  by  his  labors,  is  taking  a  well- 
earned  vacation,  and  he  was  absent  during  a  considerable  portion 
of  the  session  at  Saratoga,  leaving  only  six  judges  to  consider  the 
questions  brought  before  the  court.  During  a  very  considerable 
portion  of 'the  time  one  of  the  senior  judges,  or  a  judge  who  recently 
left  the  bench,  was  very  feeble;  he  did  not  always  hear  and  under- 
stand what  was  going  on;  and  yet  it  was  so  near  the  time  when  he 
would  retire  by  reason  of  age,  and  his  services  were  so  valuable  in 
many  other  respects,  that  it  was  not  deemed  advisable,  either  by 
himself  or  by  his  brother  judges,  that  he  should  resign.  By  giving 
us  these  additional  judges  for  that  court  you  provide  against  the 
contingency,  when  judges  are  worn  out  with  labors,  or  incapacitated 
by  sickness,  or  have  matters  to  attend  to  of  a  pressing  character 
which  they  cannot  forego,  of  having  an  inadequate  number  of 
judges  on  the  bench,  for  you  will  still  have  a  large  and  substantial 
court  of  seven  members  to  do  the  work.  To  my  mind  there  seems 
to  be  a  great  deal  of  strength  and  force  in  the  argument  that  two  of 
the  judges  can  be  writing  opinions  while  the  other  seven  are 


August  21.]  CONSTITUTIONAL  CONVENTION.  1009 

sitting  on  the  bench  hearing  cases.  As  I  understand  it,  heretofore 
in  that  court,  on  the  arguments  of  cases  there  has  been  an  assign- 
ment made  immediately  by  rotation  of  judges  to  write  the  opinions. 
There  is  a  large  class  of  cases  coming  up,  and  will  come  up  even 
under  our  limitation,  where  it  is  not  absolutely  essential  that  the 
whole  nine  judges  should  sit,  although  it  may  be  desirable  that 
seven  should  be  there  in  view  of  the  fact  that  they  have  to  review  the 
decisions  of  appellate  tribunals  of  five,  or  perhaps  in  emergencies 
of  seven,  as  in  the  first  department.  Now,  in  those  cases  how  easy 
it  will  be  for  those  judges,  after  they  have  heard  the  argument,  for 
some  one  or  two  of  them  to  step  aside  to  the  judicial  library  for  the 
preparation  of  their  opinions.  Oftentimes  questions  come  up 
before  that  court,  as  they  do  before  other  courts,  when,  after  listen- 
ing to  the  arguments  of  counsel,  entirely  new  lines  of  thought  are 
suggested  upon  consultation  among  the  judges  themselves,  new 
lines  of  thought  upon  which  their  minds  differ,  and  as  to  which  it  is 
desirable  that  some  one  of  the  judges  should  be  deputed  by  the  rest 
to  examine  the  question  and  consult  authorities.  Under  existing 
conditions  that  has  often  to  be  delayed  until  after  the  recess.  But 
now  if  you  give  us  the  additional  judges  that  may  take  place  imme- 
diately, and  while  such  things  as  appeals  from  certain  classes  of 
orders  are  being  heard,  or  matters  which  are  not  of  very  pressing 
public  importance,  as  compared  with  the  great  questions  which 
come  before  them  and  are  involved  in  the  discussions  and  considera- 
tion of  the  court. 

I  think  that  an  addition  to  the  number  of  those  judges  will 
serve  not  only  to  bring  about  more  perfect  decisions,  more  learned 
decisions,  but  will  also  serve  to  bring  about  a  relief  from  the 
pressure  of  business  upon  the  courts  to  a  very  considerable  extent. 

One  further  suggestion  and  I  have  done.  It  has  been  said  here 
that  the  proposition  to  permit  an  elector  to  vote  for  but  one  of  the 
two  judges  at  an  election  is  perhaps  the  result  of  a  "deal."  I  am 
very  sorry  that  any  gentleman  upon  the  floor  of  this  Con- 
vention should  even  conceive  such  a  thought,  and  I  am  still 
more  sorry  that  he  should  express  it.  There  is  no  fact  upon 
which  any  such  surmise  or  assertion  could  be  based.  This  provision, 
so  far  as  I  am  concerned,  at  least,  and  I  think  I  am  speaking  for  nearly 
all  of  the  committee,  came  into  it  not  from  any  such  theories,  or 
any  such  ideas,  but  solely  for  this  purpose,  for  this  consideration, 
and  for  this  reason :  It  had  been  noticed  by  all  of  us  that  on  political 
questions  the  court  was  apt  to  divide  on  party  lines,  or  that  some- 
times it  did;  and  it  was  thought  well  perhaps  that  hereafter,  the 
64 


I0io  REVISED  RECORD.  [Tuesday, 

court  being  now  very  nearly  evenly  divided,  and  as  it  will  not  be 
materially  changed  in  all  human  probability  by  the  result  of  the  elec- 
tions this  fall,  that  hereafter  that  apparent  equilibrium  should  be 
preserved  as  nearly  as  possible.  For  my  part  I  am  like  other  mem- 
bers of  the  committee,  not  tied  down  to  that  portion  of  the  amend- 
ment. If  the  objections  existing  in  the  minds  of  members  of  the 
Convention  are  so  serious  as  they  seem  to  be  considered  by  those 
who  have  spoken  upon  this  question,  I  am  willing  to  abandon  it. 
Although  political  conventions  do  not  always  select  the  very  best 
men  for  office,  yet  if  this  is  understood  to  be  the  rule  for  all  future 
time,  so  evenly  is  the  court  now  divided  it  is  probable  that 
when  the  next  selection  which  is  made,  which  will  be  a  year  from 
this  fall,  able  men  will  be  nominated  by  both  parties. 

But,  as  I  said  before,  if  this  Convention  in  its  wisdom  objects  to 
that  provision  in  the  article  (and  I  confess  that  my  own  views  of  it 
have  been  greatly  shaken  by  the  arguments  made  here  this  morn- 
ing), I  shall  cheerfully  vote  to  abandon  it.  But  I  hope  that  the 
question  will  be  divided  so  that  it  may  be  first  taken  on  the'  increase 
of  the  number  of  judges,  and  then  on  striking  out  this  provision. 
For  my  part  if  the  number  of  judges  remains  as  it  is  proposed  in 
this  article,  to  wit,  nine,  I  shall  very  cheerfully  vote  to  strike  out 
that  other  provision. 

Now,  gentlemen  of  the  Convention,  this  is  really  a  more  serious 
question  perhaps  than  appears  upon  the  face  of  it.  It  does  not 
matter  much,  so  far  as  you  and  I  are  concerned,  whether  we  appear 
as  litigants  or  as  lawyers,  what  decision  is  made  upon  our  case, 
if  it  is  a  final  decision.  That  is  in  the  abstract.  It  may  matter  a 
great  deal  as  to  the  fortunes  of  individual  litigants,  or  the  fortune 
of  individual  lawyers;  but  what  we  want  is  certainly  in  the  law, 
so  that  when  we  advise  our  clients,  or  take  action  for  ourselves 
hereafter,  we  can  do  so  advisedly,  and  with  a  knowledge  of  what  the 
law  is.  It  seems  to  me  that  so  long  as  we  make  the  General  Term 
of  five  judges,  and  in  one  instance  of  seven,  and  so  long  as  the 
Supreme  Court  of  the  United  States  consists  of  nine  members  and 
is  working  well  and  harmoniously,  and  so  long  as  it  is  our  prac- 
tice to  place  upon  the  bench  of  our  highest  Appellate  Court  men 
who  are  liable  to  sickness,  and  liable  to  interruption  in  their  judi- 
cial duties,  that  we  would  do  well  to  consider  long  before  we  limit 
the  number  of  the  Court  of  Appeals  to  the  present  number. 

Mr.  Vedder  —  Mr.  Chairman,  at  the  suggestion  of  the  remarks 
made  by  Mr.  Bowers,  and  that  we  may  have  a  free  field  and  a  fair 
fight  on  this  proposition  as  to  seven  or  nine  judges  of  the  Court 
of  Appeals,  I  move  to  amend  the  proposed  article  as  follows:  On 


August  21.]  CONSTITUTIONAL  CONVENTION.  IQII 

page  six,  section  seven,  strike  out  in  lines  seventeen  and  eighteen, 
after  the  word  "article,"  "and. at  said  election  each  elector  may  vote 
for  only  one  judge." 

I  assure  you,  sir,  that  I  was  more  than  pleased  this  morning  to 
hear  the  remarks  of  the  distinguished  President  of  this  Convention, 
when  he  denounced  the  principle  which  was  suggested  in  this 
amendment  of  the  judiciary  article.  I  do  not  know,  Mr.  Chair- 
man, what  Mr.  Bowers  may  have  had  reference  to  by  saying  that 
that  gentleman  had  changed  his  mind  since  some  indefinite  past 
time  when  something  occurred  with  reference  to  the  board  of  alder- 
men in  New  York,  when  he  might  have  entertained  other  notions. 
Any  man,  Mr.  Chairman,  may  make  a  mistake,  but  it  requires  a 
brave  man  and  a  great  man  to  acknowledge  that  he  has  made  such 
a  mistake.  If,  when  the  distinguished  President  of  this  Convention 
was  attending  to  his  law  business  in  the  city  of  New  York,  and  from 
that  pent-up  Utica  had  not  looked  very  far  out  into  the  great  domain 
of  statesmanship,  he  had  gone  a  little  wrong  under  those  circum- 
stances, it  is  a  grand  thing  that  now,  since  he  is  in  a  place  where 
he  must  develop  statesmanship,  he  should  do  it  in  the  manner  in 
which  he  has. 

Mr.  Choate  —  Will  Mr.  Vedder  allow  me?  I  am  not  entitled 
to  the  credit  of  any  of  these  observations,  because  I  never  had  or 
took  any  such  views  of  any  past  board  of  aldermen  as  Mr.  Bowers 
has  suggested.  I  leave  myself  entirely  free  to  the  consideration  of 
minority  representation  in  general  whenever  it  comes  up 

Mr.  Vedder  —  Well,  I  have  nothing  further,  then,  to  say,  Mr. 
Chairman,  in  this  behalf,  than  that  I  was  glad  to  note  the  unfolding 
of  practical  notions,  if  the  President  had  had  any  others  at  any 
past  time;  that  while  he  may  not  have  been  born  into  the  domain 
of  statesmanship,  like  Minerva,  springing  full  grown  from  the  brain 
of  Jupiter,  yet  he  is  growing,  and  growing  very  prodigiously  here, 
and  I  have  marked  it  day  by  day.  My  friend,  Mr.  Becker,  of  Erie, 
seems  to  think  that,  with  only  seven  judges  of  the  Court  of  Appeals, 
being,  as  was  suggested  by  the  chairman,  cheek  by  jowl,  day  by 
day,  that  one  would  become  the  seven  and  have  the  minds  of  all  the 
others;  that  by  the  trick  of  the  magician  which  I  have  seen,  the 
two  rabbits  rubbed  together,  would  soon  be  rubbed  into  only  one. 
Now,  Mr.  Chairman,  we  have  seen  this  exhibition  here  this  sum- 
mer; that  probably  the  two  best  legal  minds  —  two  of  the  best, 
I  will  say,  legal  minds  of  this  Convention  —  have  been  cheek  by 
jowl,  and  have  been  rubbed  together  all  summer;  that  they  are 
rubbing  together  now  upon  this  proposition,  not  with  each  other, 


1012  REVISED  RECORD.  [Tuesday, 

but  against  each  other.  One  has  not  lost  his  identity  by  being 
rubbed  against  the  other,  and  I  think  there  is  no  possible  danger  of 
either  being  rubbed  into  the  other.  This  scheme  of  these  gentlemen 
from  the  Judiciary  Committee,  as  a  whole,  cannot,  I  think,  be 
bettered;  and  I  do  not  believe  that  a  better  scheme  has  been  pro- 
posed by  any  Convention  of  this  State  or  of  any  other  State  since 
jurisprudence  began.  It  is  a  splendid  thing  from  beginning  to 
end,  and,  as  I  have  discovered,  there  is  only  one  thing  that  ought 
to  be  changed,  and  that  is  the  one  that  I  have  suggested  here;  that 
seems  to  be  the  fly  in  the  sacred  ointment.  If  that  is  stricken  out 
all  the  rest  may  remain,  and  it  will  be  the  most  matchless  and 
peerless  system  of  jurisprudence,  in  my  opinion,  that  ever  came  from 
the  brain  of  man,  and  one  that  cannot  be  equaled  in  this  or  in  any 
other  State,  or  in  any  other  country.  I  hope  with  this  exception, 
that  the  article  will  stand  substantially  as  it  is. 

Mr.  Root  —  Mr.  Chairman,  the  gentleman  from  Cattaraugus  has 
said  that  only  the  great  can  acknowledge  a  mistake.  I  shall  now 
lay  my  first,  last  and  only  claim  to  greatness  upon  the  confession 
to  this  Convention  that  the  presence  in  this  judiciary  article  of  the 
clause  that  at  the  election  for  the  proposed  additional  judges  of  the 
Court  of  Appeals,  each  elector  may  vote  for  only  one  judge,  is  a 
mistake.  It  is  a  survival,  sir,  of  the  similar  provision  which  we 
found  in  the  existing  article,  and  was  left  here  by  the  fault  of  too 
little  consideration,  and  perhaps  a  desire  to  make  as  little  change 
as  possible  in  the  numerous  and  important  modifications  which  we 
were  making.  I  hope  that  the  motion  made  by  the  gentleman  from 
Cattaraugus  will  prevail.  I  shall  certainly  vote  for  it,  and  I  know 
from  personal  consultation  that  a  large  majority,  if  not  all,  of  the 
Judiciary  Committee,  will  vote  for  it. 

Mr.  Dean  —  Mr.  Chairman,  may  I  ask  the  gentleman  a  question? 

Mr.  Root  —  Certainly. 

Mr.  Dean  —  I  want  to  ask  the  chairman  of  the  Judiciary  Com- 
mittee if  he  regards  the  election  of  two  more  judges  of  the  Court 
of  Appeals  as  absolutely  essential  to  this  magnificent  article. 

Mr.  Root  —  Mr.  Chairman,  I  will  proceed  to  answer  that  question 
in  a  moment.  And  while  I  am  up,  I  will  say  what  little  I  have  to 
say  upon  this  general  subject,  if  I-  may  be  permitted.  I  put  no 
weight  upon  the  proposition  that  the  addition  of  two  judges  to  the 
Court  of  Appeals  is  going  to  injure  that  court.  The  Supreme 
Court  of  the  United  States  is,  to  my  mind,  the  most  august,  and  the 
most  respectable,  tribunal  which  has  ever  declared  the  law  for  any 
nation  on  the  face  of  the  earth,  and  that  great  tribunal  occupied 


August  21.]  CONSTITUTIONAL  CONVENTION.  1013 

with  the  most  important  affairs  to  which  judicial  intelligence  was 
ever  addressed,  performing  the  most  important  functions  and 
exerting  the  most  momentous  influence  over  the  confidence  of  a 
great  people  that  any  department  of  any  government  has  ever  per- 
formed or  exercised,  has  always  had  nine  members  upon  its  bench ; 
at  least,  it  has  for  many  years.  I  look  for  no  deterioration  in  the 
Court  of  Appeals  in  this  State  by  the  addition  of  two  members. 
Nor,  sir,  do  I  find  myself  readily  yielding  to  the  proposition  that 
nine  judges  cannot  do  as  much  work  as  seven;  nor  to  the  still  fur- 
ther proposition  that  nine  judges  will  do  still  less  work  than  seven. 
It  seems  to  me,  sir,  as  I  have  already  said,  that  the  addition  of  two 
members  to  the  court  will  somewhat,  at  least,  increase  its  effective 
force. 

I  will  answer  the  gentleman  from  Cattaraugus,  Mr.  Dean,  by 
saying  that  I  do  not  think  that  the  addition  is  essential  to  the  scheme 
of  this  report.  I  do  not  think  that  the  question  whether  there  shall 
be  seven  judges  or  nine  judges  in  the  Court  of  Appeals  is  a  vital 
question  to  the  maintenance  of  the  scheme.  But,  sir,  there  are  other 
gentlemen  who  have  concurred  in  this  scheme,  who  do  think  that 
it  is.  There  are  gentlemen  whose  views  were  radically  opposed  to 
those  of  a  majority  of  the  committee;  radically  opposed  to  what  I 
believe  to  be  the  views  of  this  Convention,  who  place  the  addition 
of  these  two  judges  as  the  sole  condition  of  their  assent  to  the 
scheme,  and  who  thoroughly  believe  that  if  the  court  is  left  at  seven 
it  will  be  incapable  of  performing  the  duties  which  will  be  assigned 
to  it  under  the  proposed  judiciary  article.  Now,  Mr.  Chairman,  if 
seventeen  men,  in  any  committee  of  this  Convention,  were  to  take 
their  places  around  the  consultation  board,  for  the  purpose  of  evolv- 
ing a  judiciary  article,  or  an  educational  article,  or  a  charities  article, 
or  whatever  it  might  be,  a  part  of  this  great  scheme  which  we  call 
a  constitution,  and  every  one  of  them  were  to  insist  upon  his  pre- 
conceived opinions,  refuse  to  consult,  refuse  to  permit  his  views 
to  be  modified  by  those  of  others,  what  but  chaos  would  come  from 
any  committee?  And  if  the  same  course  were  to  be  followed  in 
Convention,  every  one  of  the  170  insisting  upon  his  own  personal 
judgment  as  to  every  particular,  how  could  the  concensus  of  opinions 
bring  out  a  symmetrical  whole  which,  while  this,  and  that  and  the 
other  member  may  differ  upon  it  as  to  any  detail,  all  agree  —  will, 
as  a  whole,  be  better  than  that  which  it  supersedes.  That,  sir,  is 
the  genesis  of  this  provision,  as  of  many  other  provisions  in  this 
scheme.  The  rubbing  together  of  minds,  long  continued  discussion, 
the  exercise  of  good  nature  and  patience  and  respect  for  one 
another  and  one  another's  opinions,  the  candid  and  sincere  desire 


1014  REVISED  RECORD.  [Tuesday, 

that  there  should  be  a  united  plan,  that  there  should  be  agreement 
upon  a  scheme  that  would  really  improve  the  judicial  system  of  this 
State,  has  led  to  our  meeting,  to  some  extent,  the  gentlemen  who 
wished  for  a  great  court  of  fourteen  judges,  and  are  asking  that 
the  gentlemen  who  stand  upon  a  court  of  seven  and  believe  that 
that  would  be  best,  shall  consent  to  this  slight  modification  of  the 
court,  this  addition  which  will  not  bring  it  below  the  standard  of 
the  Supreme  Court  of  the  United  States,  in  order  that  we  may  have 
harmony  and  united  views,  and  be  able  to  go  to  the  people  with  an 
article  which,  as  a  whole,  will  be  better  than  that  which  it  supersedes. 
I  believe,  Mr.  Chairman,  that  the  addition  of  these  two  members, 
notwithstanding  what  my  learned  friend  upon  the  other  side  of  the 
Convention  has  said,  it  will  be  an  improvement  in  the  court;  although 
I  do  not  think  it  is  vital.  I  believe  that  nine  men  of  the  age  which 
is  appropriate  to  judges  of  the  highest  court  of  the  land,  will  find 
occasions,  as  seven  men  do,  when  one  or  two,  perhaps,  of  their 
number,  are  not  really  fit  to  do  judicial  work;  when  temporary  rest 
is  required,  when  a  temporary  rest  would  not  only  relieve  the  judge 
himself  but  improve  the  deliberations  of  the  court.  Opportunity 
for  that  will  be  afforded  by  nine,  when  if  there  were  but  seven  on  the 
bench,  the  absence  of  one  would  be  most  seriously  felt.  It  is  not 
a  question  of  a  rotating  court;  it  is  a  question  of  a  court  in  which 
there  is  some  liberty  of  action,  some  liberty  for  rest,  some  liberty 
for  a  man  not  to  force  himself  against  sickness  and  fatigue.  I  think- 
that  the  due  preservation  of  the  relations  between  the  courts  make 
it  more  appropriate  that  there  should  be  nine  than  that  there  should 
be  seven.  We  are  constituting  these  great  appellate  tribunals  with 
five  justices  of  the  Supreme  Court  sitting  in  each,  and  appeals  are 
to  be  taken  from  their  decisions  to  this  court  of  last  resort.  If 
it  be  a  court  of  seven  judges,  often  it  will  be  a  court  of  six  judges, 
because  one  will  be  incapacitated  for  the  time  beifig,  from  sitting, 
or  it  may  be  a  court  of  five  judges;  and  you  will  have  five  judges 
on  the  bench,  or  six  judges  on  the  bench,  reviewing  the  unanimous 
decisions  of  five  judges  in  the  court  below.  While  that  is  not  fatal 
to  having  a  court  of  seven,  while  it  is  not  vital  to  the  scheme,  it 
seems  to  me,  sir,  that  it  is  in  the  line  of  improvement,  that  it  pre- 
serves a  more  harmonious  relation  between  the  tribunal  which  is 
reviewed  and  the  tribunal  which  is  to  review,  if  we  have  nine  judges 
upon  the  bench;  and,  sir,  with  the  feeling  that  it  certainly  cannot 
harm  the  court,  that  it  probably  will  increase  its  efficiency  and 
working  power,  that  it  makes  the  court  a  more  harmonious 
part  of  the  general  system,  that  the  addition  of  the  two  is  a 
recognition  of  the  fact  that,  possibly,  those  who  stand  for  seven 


August  21.]  CONSTITUTIONAL  CONVENTION.  1015 

may  be  to  some  degree  wrong,  and  that,  possibly,  those  who  stand 
for  a  great  increase,  may  have  some  element  of  right  in  their  views, 
that  we  are  none  of  us  altogether  perfect  in  our  judgment,  that  all 
of  us  are  bound  to  defer  to  some  extent  to  the  judgment  of  others, 
and  that  all  of  us  may  learn  from  others,  I  believe,  that  the  Con- 
stitution of  this  court  with  nine  members  is  a  proper,  prudent,  justi- 
fiable measure,  to  be  adopted  by  this  Convention;  and  I  hope,  sir, 
that  the  Convention  will  stand  by  it.  I  do  not  believe,  sir,  that  the 
question  of  economy,  important  as  the  question  of  economy  is, 
should  stand  between  this  Convention  and  the  creation  of  the  very 
best  possible  judicial  system  for  this  State;  and  I  do  not  believe 
that  such  a  question  will  stand  between  the  people  of  the  State 
and  the  creation  of  the  very  best  judicial  system  for  declaring  and 
administering  its  laws  that  the  wit  of  man  can  devise.  For  these 
reasons,  sir,  I  am  for  the  report  of  the  committee,  as  to  this  section, 
with  the  modification  which  would  be  made  by  the  amendment  of 
the  gentleman  from  Cattaraugus. 

Mr.  Mulqueen  —  Mr.  Chairman,  I  simply  want  to  say  as  briefly 
as  possible,  that  in  my  opinion  we  should  not  change  the  judicial 
system  in  any  part  of  the  State  unless  we  change  the  Court  of 
Appeals  also.  Our  present  system  has  the  confidence  and  respect 
of  the  people  of  the  State,  and  it  is  based  largely  upon  the  fact  that 
we  have  established  a  system  by  which,  when  you  overturn  the 
decision  of  one  judge,  you  must  do  it  with  two  judges  of  the 
General  Term,  and  where  you  overturn  the  decision  of  the  General 
Term,  you  have  to  overturn  it  with  a  greater  number  of  judges  in 
the  Court  of  Appeals.  I  believe  that  the  people  believe  in  that  sys- 
tem, and  I  think  if  we  are  going  to  aim,  as  the  President  suggested 
this  morning  that  the  aim  of  this  Convention  should  be,  that  the 
Court  of  Appeals  shall  make  the  law  so  well  knowrn  to  the  people 
that  they  may  keep  out  of  the  law,  then  we  should  have  the  highest 
court  with  a  higher  number  of  judges  than  seven.  For  example, 
on  the  great  question  suggested  by  the  gentleman  from  Erie,  soon 
to  come  before  the  Court  of  Appeals,  if  five  judges  of  an  appellate 
term  had  decided  one  way,  and  those  five  had  been  reversed  by 
four  of  the  Court  of  Appeals,  think  you  that  the  people  interested 
in  that  great  movement  would  be  satisfied.  Certainly  not.  They 
would  have  to  submit,  but  they  would  go  on  agitating,  hoping 
some  day  to  obtain  the  election  to  the  Court  of  Appeals  of  one  of 
the  judges  of  the  Supreme  Court  that  favored  them,  and  then  get- 
ting that  judge  into  the  Court  of  Appeals,  the  Court  of  Appeals 
might  overrule  itself.  So,  I  believe,  Mr.  Chairman,  that  it  is  wise 
for  us,  if  we  are  going  to  follow  in  the  line  which  has  won  for  the 


I0l6  REVISED  RECORD.  [Tuesday, 

judicial  system  of  this  State  the  respect  and  confidence  9f  the  whole 
people,  we  must  change  the  Court  of  Appeals  when  we  change  the 
number  of  judges  who  are  to  sit  at  General  Term.  Now  I  am 
heartily  in  favor  of  the  amendment  presented  by  the  gentleman  from 
Cattaraugus.  1  had  prepared  such  an  amendment,  Mr.  Chairman, 
and  I  tried  to  obtain  the  floor,  but  failing  to  do  so,  I  handed  it  to 
the  gentleman  with  a  number  of  others  that  were  presented 
to  him.  I  believe  it  would  be  a  sad  thing  for  this  State  to 
leave  it  to  the  State  central  committee  of  either  party  to  name  a 
candidate  for  the  Court  of  Appeals.  That  should  be  left  to  the 
people.  Minority  representation  has  no  place  in  the  Court  of 
Appeals.  The%  people  should  have  the  opportunity  to  vote  for  all 
of  the  judges;  and  I  believe  in  everything  that  the  President  of  the 
Convention  has  said ;  and  I  hope,  Mr.  Chairman,  that  we,  who  believe 
that  the  Court  of  Appeals  should  contain  nine  judges,  will  have  an 
opportunity  to  vote  first  upon  striking  out  this  clause  in  the  article 
which  says,  "  at  said  election,  each  elector  may  vote  for  only  one 
judge." 

Mr.  Baker  —  Mr.  Chairman,  in  listening  to  some  of  the  remarks 
of  the  chairman  of  the  Judiciary  Committee,  I  was  led  to  think  that 
possibly  the  Court  of  Appeals  had  been  modeled  after  the  Supreme 
Court  of  the  United  States.  I  trust,  gentlemen  of  the  Convention, 
the  same  necessity  does  not  now  exist  that  existed  for  the  remodel- 
ing of  the  Supreme  Court  of  the  United  States.  Many  gentlemen, 
when  I  refer  to  it,  will  recollect  that  the  Supreme  Court  of  the 
United  States  was  remodeled,  when  the  addition  of  two  judges  was 
made  to  it,  for  a  purpose.  It  was  really  one  of  the  results  of  the 
war.  It  was  a  war  measure.  The  legal  tenders  were  likely  to  be 
pronounced  unconstitutional.  I  am  not  disclosing  State  secrets,  I 
believe,  in  saying  that,  that  for  the  purpose  of  getting  a  decision 
that  the  legal  tenders  were  constitutional,  it  was  necessary  that  we 
should  have  other  judges  on  the  bench.  The  court  stood  four  to 
three,  four  against  the  constitutionality  of  the  legal  tenders  and 
three  in  favor  of  it.  Therefore,  Congress  remodeled  the  Supreme 
Court  of  the  United  States  for  the  purpose  of  affecting  their  deci- 
sion upon  the  question  of  the  constitutionality  of  the  legal  tenders, 
and  for  no  other  purpose.  That  was  the  only  necessity,  and  I 
believe  there  is  no  such  necessity  now.  I  believe  that  seven  judges 
will  preside  with  as  much  dignity,  look  as  well,  give  as  good  deci- 
sions, give  as  much  attention  to  the  business  before  the  Court  of 
Appeals.,  as  would  nine.  Now,  if  that  was  the  reason,  if  that  was 
one  of  the  reasons,  why  the  committee  saw  fit  to  increase  the  num- 
ber of  judges  from  seven  to  nine,  so  that  it  might  compare  and 


August  21.]  CONSTITUTIONAL  CONVENTION.  1017 

comport  with  the  Supreme  Court  of  the  United  States,  I  insist  that 
they  have  no  such  occasion. 

Mr.  Moore  —  Mr.  Chairman,  the  debate  thus  far  has  seemed  to 
me  to  be  based  upon  the  line  as  to  what  is  the  convenience  of  the 
members  of  the  Court  of  Appeals.  One  gentleman  has  said,  in 
substance,  that  the  court  should  not  be  enlarged  because  of  the 
learning,  the  ability,  the  stability  to  be  desired,  and  the  length  of 
time  that  the  judges  have  to  serve.  I  regard  that,  Mr.  Chairman, 
as  an  exceedingly  fallacious  argument.  I  believe  that  the  people 
of  this  great  State,  this  imperial  State  of  six  millions  of  people, 
have  a  right  in  this  State,  a  State  which  is  at  the  head  of  the  com- 
merce of  this  great  nation,  which  is  really  the  pivotal  State  of  the 
Union,  to  have  a  court  in  consonance  with  its  greatness.  The 
Court  of  Appeals,  as  at  present  constituted,  has  not  in  the  past 
been  able  to  do  the  business  of  the  people  of  this  State,  and  we  have 
no  expectation  and  no  proof  that  it  will  be  able  to  do  it,  as  at  present 
constituted,  in  the  future.  The  arguments  that  have  been  made 
here,  so  far  as  I  am  able  to  judge,  Mr.  Chairman,  seem  to  have  put 
out  of  sight  the  fact  that  this  Convention  is  not  going  to  do  the 
voting,  that  the  dilettante  lawyers  here  are  not  the  people  of  this 
State,  that  the  masses  are  going  to  vote  here,  and  that  they  are  the 
people  whose  convenience  should  be  consulted  in  this  great  matter. 
Coming,  as  I  do,  from  the  great  Republican  district  giving  the 
largest  majority  in  this  State,  I  have  the  interests  of  my  party  at 
heart;  the  interests  of  the  people  first,  and  my  party  next;  and,  in , 
this  instance,  I  believe  every  man  who  serves  his  party  first  in  my 
district  serves  his  State  first.  Mr.  Chairman,  the  people  in  my  dis- 
trict want  the  Court  of  Appeals  increased;  they  have  been  disap- 
pointed time  and  time  again  from  the  fact  that  there  were  not  mem- 
bers enough  in  that  court.  I  do  not  mean  to  say  by  that  that  the 
court  has  not  ability.  It  has  great  ability  or  the  people  of  this 
State  would  not  have  elected  its  judges  to  those  high  positions. 

Mr.  Chairman,  I  am  informed  by  gentlemen  who  have  studied  up 
this  question  for  the  last  three  months  —  we,  members  of  the  Con- 
vention in  general,  may  well  be  excused  if  we  do  not  know  all  the 
details  of  this  measure — that  the  seventeen  members  of  this  Judiciary 
Committee,  the  pets  of  the  Convention,  have  had  this  thing  for 
three  long  months  incubating,  and  I  want  to  say  to  you  that,  in  my 
judgment,  with  the  exception  of  the  fourteen-year  term  and  the 
fallacious  idea  of  minority  representation,  I  think  it  is  the  grandest 
judicial  article  I  have  ever  read  or  seen  anywheres.  With  that 
exception,  I  am  in  favor  of  it.  I  believe  that  the  Court  of  Appeals 
in  this  State  should  consist  of  nine  members.  I  believe  that  that 


I0i8  REVISED  RECORD.  [Tuesday, 

theory  and  that  practice  put  into  effect  will  justify  the  expectations 
from  this  judicial  article.  Now,  as  to  the  economy.  I  am  informed 
by  those  who  know  that  the  sweeping  away  of  the  different  courts 
which  are  put  out  of  existence  by  this  article,  the  numerous 
hangers-on,  the  clerks  and  the  system  of  expense  which  will  be  dis- 
pensed with,  will  more  than  compensate  for  the  salaries  of  the 
extra  judges  which  it  is  proposed  to  elect  by  this  article.  Hence, 
I  think,  on  the  score  of  economy,  we  who  are  charged  with  the 
responsibility  of  the  conduct  of  this  Convention  might  well  go  to 
the  people  with  this  article  and  ask  them  to  vote  for  it;  and  if  I  am 
permitted,  Mr.  Chairman,  to  take  part  in  the  campaign  on  the  hills 
and  vslleys  of  my  great  district,  I  shall  most  cheerfully,  Mr.  Chair- 
man, advocate  this  great  article,  emanating  from  the  great  brains 
of  the  Judiciary  Committee  of  the  Constitutional  Convention  of 
1894,  of  which  I  am  an  humble  member.  (Applause.) 

Mr.  McClure  —  Mr.  Chairman,  I  would  like  to  ask  the  gentleman 
a  question.  When  he  says  that  he  is  with  those  who  have  the 
responsibility  of  the  work  of  this  Convention,  to  whom  does  he 
refer? 

Mr.  Moore  —  I  refer,  sir,  to  those  whom  the  people  have  put  in 
here  in  the  majority,  who  have  to  account  to  the  people  for  what 
they  do  here;  and  we  are  ready,  Mr.  Chairman,  to  take  and  act  upon 
that  responsibility,  according  to  our  oaths,  for  the  good  of  the 
whole  people  of  this  State. 

Mr.  Roche  —  Mr.  Chairman,  I  have  been  traveling  up  in  the 
Adirondack  region,  in  which  my  friend,  Mr.  Moore,  has  resided  for 
several  years  past.  I  have  found  nothing  much  but  trees  and  rocks. 
I  can  see  that  there  is  a  constantly  increasing  decrease  in  the  popu- 
lation, and  I  could  not  quite  account  for  it  until  to-day. 

Mr.  Moore  —  Will  the  gentleman  allow  me  to  ask  him  a 
question? 

Mr.  Roche  —  I  would  prefer  the  gentleman  to  refer  to  the  census 
tables. 

Mr.  Moore  —  I  only  want  to  ask  him  a  question. 
Mr.  Roche  —  After  a  while,  after  a  while. 
The  Chairman  —  Mr.  Roche  has  the  floor. 

Mr.  Roche  —  And  I  say  I  can  only  account  to-day  for  what  the 
gentleman  has  said  on  the  theory  that  the  people  up  in  that  region 
have  been  dissatisfied  with  not  having  a  sufficient  force  in  the  Court 
of  Appeals. 

Now,  Mr.  Chairman,  to  one  who  is  on  the  other  side  of  the  house 


August  21.]  CONSTITUTIONAL  CONVENTION.  1019 

politically,  it  was  very  pleasant  to  hear  the  certificate  of  growth, 
character  and  availability  which  the  Republican  candidate  for 
Lieutenant-Governor  —  I  do  not  see  him  in  the  House  at  present  — 
gave  to  the  gentleman  who  may  be  a  possible  —  and  a  majority  of 
those  here  present,  without  regard  to  party,  might  say  a  hoped-for 
and  probable  head  of  the  ticket,  even  though  the  nomination  should 
prove  to  be  a  barren  one,  when  it  comes  to  be  passed  upon  by  the 
people  at  the  polls. 

Mr.  Chairman,  I  think  that  the  work  of  this  committee  is  admir- 
able in  the  main.  The  report  which  accompanies  the  article  is  very 
explanatory,  and  to  my  mind  fully  justifies  the  main  provisions  of 
this  article.  I  am  opposed,  though,  to  section  7  as  it  stands,  and 
am  in  favor  of  the  amendment  proposed  by  Mr.  Brown.  It  will  be 
noticed  that  the  committee,  in  their  report,  assign  good  reasons  for 
almost  every  new  provision  which  they  have  presented,  except 
this  one  now  before  us,  and  all  that  is  said  on  that  subject  that  I 
can  see  is  in  the  following  words :  "  The  Court  of  Appeals  is  to  be 
enlarged  to  nine,  the  lowest  number  with  which  the  unity  of  the 
court  and  its  consistent  declaration  and  development  of  the  law  can, 
in  our  opinion,  be  maintained."  That  certainly  is  not  an  argument 
for  increasing  the  court  from  seven  to  nine.  The  only  thing  else 
that  we  find  on  the  subject  is  on  page  7,  where  it  is  said  that  "  the 
increase  in  the  number  of  the  judges  of  the  Court  of  Appeals  would 
slightly  increase  the  working  power  of  the  court,"  and  that  is  so 
faint  a  reason,  and  so  faintly  stated,  for  the  proposed  increase,  that 
it  seems  to  me  the  Convention  should  hesitate  a  long  while  before 
adding  this  number  to  the  present  judicial  force.  This  report  con- 
tains ample  reasons  for  rejecting  this  proposition.  They  are  in 
these  words,  after  referring  to  the  reasons  why  they  did  not  adopt 
the  proposition  of  Mr.  Parmenter,  they  say :  "  There  remains  the 
plan  which  we  propose.  We  are  of  the  opinion  that  the  new  Appel- 
late Courts  will  be  more  efficient,  that  their  opinions  will  be  more 
highly  respected,  that  their  judgments  will  be  less  frequently 
reversed,  and  that,  for  all  these  reasons,  there  will  be  fewer  appeals 
from  them  to  the  Court  of  Appeals  than  there  are  from  the  existing 
General  Terms.  We  are  also  satisfied  that  the  limitations  upon  the 
jurisdiction  of  the  Court  of  Appeals  and  the  right  to  appeal  thereto, 
will  further  very  largely  reduce  the  number  of  appeals  to  that 
court." 

Now,  Mr.  Chairman,  we  go  before  the  people  this  fall  with  a 
proposition  to  increase  the  judicial  force  of  the  State,  the  Supreme 
Court  of  the  State,  by  twelve  in  number.  We  propose  to  take  cer- 
tain judges  who  were  not  elected  to  certain  offices  by  the  people, 


1020  REVISED  RECORD.  [tuesday, 

and  who  are  receiving  certain  salaries,  and  make  them  judges  of 
more  highly  important  courts  with  increased  salaries.  We  pro- 
pose to  add  to  the  judicial  force  of  the  Court  of  Appeals.  1  say, 
Mr.  Chairman,  we  must  give  good  reasons  to  the  people  for  this 
action.  If  the  people  of  this  State  get  a  notion  into  their  heads 
that  this  is  a  lawyers'  Convention,  held  for  the  purpose  of  creating 
positions  which  the  lawyers  are  to  fill,  the  bell  will  be  rung  on  the 
work  of  this  Convention  and  its  work  will  be  defeated  at  the  polls. 
Now,  I  am  entirely  satisfied  that  the  people  want  all  the  judges 
necessary  for  the  transaction  of  the  people's  business.  They  are 
willing  to  pay  them  decent  salaries.  But,  sir,  we  have  given  them 
no  good  reasons,  and  none  of  them  have  been  discussed  in  this 
report  or  in  the  addresses  that  have  been  made  on  this  floor  for 
this  increase  in  the  Court  of  Appeals;  and  once  it  gets  running  in 
the  popular  mind  that  this  is  a  lawyers'  Convention,  as  I  have  said, 
which  is  adding  simply  to  the  number  of  judges,  the  people  will  not 
wait  to  discriminate  or  examine  this  thing  with  exceeding  great 
care,  and  we  will  find  that  it  will  all  go  by  the  board.  It  is  not  a 
good  year  in  which  to  present  to  the  people  propositions  which 
involve  to  a  great  extent  the  increase  of  judicial  or  other  public 
offices,  and  also  increase  public  expenditures. 

During  the  year  that  has  passed  and  during  the  present  year,  the 
people  have  suffered  very  greatly  in  their  business,  in  their  employ- 
ments and  in  their  ability  to  get  work.  The  merchant  has  felt  a 
material  falling  off  in  his  trade  and  business.  Thousands  and  tens 
of  thousands  of  men  in  the  State  have  been  without  work.  Many  a 
man  owning  his  little  home  has  found  it  harder  to  pay  his  taxes 
than  he  ever  found  it  from  1873  to  1879.  Tne  agricultural  com- 
munity has  felt  this  depression.  I  say,  Mr.  Chairman,  it  is  unwise 
to  have  it  go  out  from  this  Convention  that  we  are  here  as  a  body 
of  lawyers,  putting  before  the  people  a  large  and  unnecessary 
increase  in  public  officers  and  public  expenditures. 

We  go  before  the  people  with  these  reasons,  which  no  man  can 
answer,  that  we  propose  to  reduce  the  amount  of  business  that  the 
court,  a  homogeneous  court,  is  to  be  called  upon  to  transact,  and  we 
are  going  to  increase  the  judicial  force  to  transact  a  smaller  amount 
of  business.  I  say,  Mr.  Chairman,  that  the  people  will  not  accept  it 
with  patience  or  approval. 

Now,  Mr.  Chairman,  it  has  been  said  that  the  Supreme  Court  of 
the  United  States  is  a  body  of  nine.  Mr.  Baker  has  anticipated 
what  I  meant  to  say  as  to  how  that  body  came  to  be  increased  from 
seven  to  nine.  But  there  is  no  analogy  between  the  cases.  The 
Supreme  Court  of  the  United  States  is  the  court  of  last  resort  for 


August  21.]  CONSTITUTIONAL  CONVENTION.  1021 

sixty  millions  of  people,  and  the  character  of  business  which  it 
transacts  is  unknown  in  any  other  tribunal  in  the  world. 

The  judges  of  the  Supreme  Court  of  the  United  States,  until 
the  Circuit  Court  or  intermediate  Court  of  Appeals  was  established 
a  few  years  ago,  were  not  only  Supreme  Court  judges,  but  they 
had  circuits  assigned  to  them  and  were  compelled  to  attend  them,  a 
class  of  work  which  has  not  been  done  by  the  judges  of  the  Court 
of  Appeals  of  this  State.  So  I  say  there  is  no  analogy  between  the 
two  courts. 

Now,  it  has  been  further  said,  that  it  is  necessary  for  this  increase 
to  nine,  because  you  may  find  a  case  in  which  five  judges  would  be 
reversing  the  decision  of  five  judges  in  the  intermediate  division. 
Well,  now  that  may  be  all  true,  but  has  the  committee  accomplished 
all  that  they  meant  to  accomplish,  if  they  intended  effectually  to  meet 
that  difficulty?  You  have  provided  for  a  quorum  of  seven,  and 
five  would  be  necessary  to  render  the  decision.  Suppose  that  the 
intermediate  court  is  unanimous  and  that  the  intermediate  court 
affirms  the  decisions  of  the  trial  court.  Then  you  have  six  judges 
one  way,  and  you  certainly  have  not  met  that  difficulty  in  this 
article.  To  meet  it  you  must  create  a  Court  of  Appeals  of  thirteen, 
with  a  quorum  of  eleven,  and  nine  to  render  a  decision.  So  I  say 
that  that  falls  to  the  ground;  and  I  submit,  further,  that  it  is  hardly 
a  good  reason  in  view  of  the  extreme  improbability  of  such  a  case 
arising.  It  is  hardly  worth  our  while  for  that  reason  alone  to 
make  this  increase  in  the  judges  of  the  Court  of  Appeals. 

Now,  my  friend  from  Erie  has  spoken  of  the  character  of  the 
cases  that  come  before  that  court,  and  has  referred  to  the  grain 
elevator  case.  How  would  this  proposition  meet  that  difficulty? 
Suppose  the  grain  elevator  case  was  tried  by  a  judge  at  a  trial  term, 
affirmed  by  the  intermediate  court  of  five,  and  affirmed  by  five  in 
the  Court  of  Appeals,  that  would  be  fifteen.  That  case  should  go, 
to  the  Supreme  Court  of  the  United  States,  and  there  the  decision 
of  the  fifteen  might  be  reversed  by  five  men  in  the  Supreme  Court 
of  the  United  States.  So,  it  is  impossible  for  you  to  meet  the  objec- 
tion, which  to  my  mind  is  a  trifling  one,  that  you  must  have  a 
Court  of  Appeals  so  large  that  you  must  have  a  certain  number  of 
judges  rendering  a  decision,  and  that  number  must  exceed  all  the 
judges  of  the  lower  courts  who  decided  the  other  way. 

It  seems  to  me  that  the  President  of  this  Convention  stated  very 
clearly  the  best  reasons  why  this  article  should  not  be  adopted  so 
far  as  this  particular  point  was  concerned. 

Now,  Mr.  Chairman,  I  admire  very  much  the  chivalry  of  this 
committee,  the  admiration  of  one  for  the  other.  I  did  not  know 


1022  REVISED  RECORD.  [Tuesday, 

until  this  morning  that  there  was  a  dissent  in  that  committee  on 
the  part  of  any  one  except  Mr.  Parmenter.  I  learned  here  this 
morning  that  the  committee  have  been  very  sharply  divided  on  this 
particular,  and,  indeed,  on  other  points  on  this  amendment,  stand- 
ing on  this  particular  subject  nine  to  eight. 

Now  my  distinguished  friend  from  New  York  (Mr.  Bowers)  has 
given  reasons  which  are  undoubtedly  very  satisfactory  to  him,  and 
which  certainly  show  loyalty  on  his  part  to  this  committee,  even 
if  he  does  not  quite  believe  in  it.  It  is  a  sort  of  "united  we  stand, 
divided  we  fall "  spirit.  But  so  far  as  the  rest  of  us  are  concerned, 
we  do  not  have  to  stand  by  it  because  the  committee  is  agreed 
upon  it.  If  we  are  going  to  increase  this  court,  let  us  have  the 
courage  to  increase  it  to  the  extent  proposed  by  my  friend  from 
Rensselaer  (Mr.  Parmenter),  and  then  we  will  have  some  of  the  work 
done  which  has  been  said  could  be  done  by  these  nine  judges.  If 
you  are  not  going  to  increase  it  to  this  extent,  do  not  increase  it 
at  all. 

Now,  my  friend  from  Erie  has  also  spoken  of  the  necessity  for 
new  blood  in  this  court,  and,  according  to  the  proposition  which 
comes  from  this  committee,  it  was  to  be  equally  divided.  It  was 
to  be  Republican  blood  and  Democratic  blood,  and  which  was  to 
be  the  true  blood,  the  gentlemen  of  the  Convention,  knowing  my 
opinions,  can  decide  for  themselves,  which,  I  believe,  would  go 
into  the  court.  But,  Mr.  Chairman,  it  seems  to  me  that  there  is 
no  necessity  for  any  such  thing.  We  renew  our  Court  of  Appeals 
from  time  to  time,  and  we  have  within  recent  years,  even  so  late 
as  last  fall.  By  adopting  his  idea  we  impeach  the  work  which  has 
been  done  by  the  great,  political  parties  of  this  State  in  uniting  upon 
and  continuing  Judge  Earl,  and  again  in  continuing  Judge  Andrews 
in  the  Court  of  Appeals;  and  an  examination  of  the  opinions  and 
decisions  of  that  court  and  of  the  opinions  written  by  these  gentle- 
men, I  think,  will  convince  any  unprejudiced  mind  that  there  was 
no  want  of  sturdy  blood  or  good  common  sense  in  the  opinions 
that  were  written  by  either  of  these  gentlemen. 

Mr.  Becker  —  Mr.  Chairman,  I  would  like  to  ask  the  gentleman 
if  he  has  not  already  stated  on  the  floor  of  this  house  that  the 
pension  question  had  something  to  do  with  that,  in  substance  and 
effect? 

Mr.  Roche  —  I  have  stated  nothing  of  the  kind,  sir.  I  do  not 
believe  the  pension  question  decided  by  the  Court  of  Appeals  has 
had  any  effect  whatever  upon  the  honesty  or  the  soundness  of  the 
opinions  that  were  written  by  either  of  those  gentlemen  upon  any 
question  of  negligence,  of  real  estate  and  of  admiralty,  or  any  of 


August  21.]  CONSTITUTIONAL  CONVENTION.  1023 

the  great  questions,  political  or  legal,  that  have  come  before  that 
august  tribunal  for  the  last  twelve  years,  and  I  think  it  was  within 
that  time  that  the  decision  to  which  he  refers  was  made. 

Now,  it  has  been  suggested  further  that  by  making  the  number 
nine  that  we  will  take  care  of  this  court  for  fifty  years.  Gentlemen, 
I  think  it  is  a  mistake.  We  are  undertaking  to  do  too  much  by 
providing  for  this  court  for  fifty  years.  Let  us  take  care  of  it  for 
a  few  years  hence. 

Another  Convention  will  have  come  on  before  the  fifty  years  will 
have  run  by,  and  if  the  conditions  require  it  then  this  number  can 
be  very  properly  increased.  If  within  the  next  five  or  eight  years, 
it  develops  that  this  system  of  the  Appellate  Division,  whose 
decisions  will  be  more  respected,  whose  work  will  almost  of  itself 
limit  the  number  of  cases  that  go  to  the  Court  of  Appeals,  does  not 
work  satisfactorily,  does  not  work  out  the  result  which  we  anticipate 
it  will,  then  the  Legislature  of  the  State  of  New  York,  answering 
to  the  popular  demand,  answering  to  the  needs  of  litigants,  answer- 
ing to  the  representations  of  the  members  of  the  legal  profession, 
can  propose  an  amendment  increasing  the  number,  get  it  before 
the  people  and  get  it  adopted,  if  that  will  be  the  true  remedy  for 
meeting  the  difficulty. 

It  has  been  further  suggested,  Mr.  Chairman,  that  we  need  to 
increase  this  court  because  there  are  some  men  in  it  of  strong 
minds.  Now,  I  believe  in  the  good  doctrine  that  all  men  are  created 
equal,  but  I  have  yet  to  find  that  all  men  are  of  equal  degree  of 
intelligence  or  will  power,  and  whoever  may  be  elected  to  this  court 
may  be  subject  to  the  strong  minds,  the  superior  ability,  the  superior 
learning  and  the  vastly  greater  experience  of  some  other  men  in 
the  court.  That  is  bound  to  be  so.  And  it  is  certainly  no  argu- 
ment, for  adding  to  the  number  of  the  court,  that  the  court  may 
to-day  be  controlled  by  strong  minds  in  its  body,  because  that  may 
happen  whether  the  court  be  nine  or  fourteen  in  number. 

I  wish  to  suggest  further,  Mr.  Chairman,  that  we  adopted  a  pro- 
vision last  evening  increasing  the  number  of  judges  of  the  Supreme 
Court  by  twelve.  I  was  satisfied,  after  Mr.  Brown's  presentation  of 
the  matter  and  what  I  heard  later,  that  perhaps  we  made  a  mistake 
in  that  respect.  There  are  certain  portions  of  the  State  in  which 
the  population  is  decreasing.  I  believe  there  are  certain  judicial 
districts  in  which  we  do  not  need  any  increase  in  judicial  force,  and 
that  even  with  this  call  for  the  extra  number  of  judges  that  will 
go  into  the  Appellate  Division,  there  is  no  necessity  whatever  for 
increasing  the  number  of  judges  in  certain  of  the  districts,  and  .1 
was  convinced  of  that  by  the  figures  which  were  on  the  table  and  by 


1024  REVISED  RECORD.  [Tuesday, 

the  statements  which  were  made  by  a  gentleman  of  this  Judiciary 
Committee. 

Now,  gentlemen,  I  say  we  may  make  a  mistake  in  presenting 
this  thing  to  the  people.  I  said  to  that  gentleman  that  we  should 
not  go  before  the  people  and  ask  for  any  judges  that  we  did  not 
need,  and  that  I  was  afraid  that  it  would  endanger  the  adoption 
of  this  Constitution.  I  have  heard  from  two  gentlemen  this  state- 
ment, that  the  people  in  New  York  and  the  people  in  Brooklyn 
all  want  this  thing  and  will  vote  for  it  unanimously.  Now,  gentle- 
men, the  people  in  New  York  vote  about  two  hundred  or  two  hun- 
dren  and  fifty  thousand  in  the  presidential  year,  and  in  view  of 
the  candidacy  of  which  I  spoke  before,  the  people  of  New  York 
may  come  out  in  large  numbers  to  do  justice  to  a  distinguished 
fellow-citizen,  if  he  should  be  at  the  head  of  the  ticket,  and  at  the 
same  time  they  will  be  called  upon  to  pass  upon  this  article,  and 
before  those  people  will  go  the  words  which  were  uttered  by  that 
gentleman  this  morning,  to  the  effect  that  this  provision  was  not 
needed  for  our  highest  court,  and  I  wish  to  say  further  to  these 
gentlemen  that  there  are  upwards  of  a  million  of  voters  in  the  State 
of  New  York  outside  the  city  of  New  York ;  that  the  people  are  con- 
sidering these  propositions  up  here  in  the  rural  districts  to  an  extent 
that  those  living  in  the  city  of  New  York  may  not  understand  or 
appreciate;  that  they  are  looking  carefully  into  all  the  matters  that 
are  proposed  in  this  Convention,  and  that  among  the  things  which 
they  are  very  carefully  considering  is  this  judiciary  article,  and 
they  are  looking  with  more  than  jealous  eyes  upon  propositions  to 
increase  the  judicial  force  and  judicial  expenditures,  unless  there  is 
a  plain,  apparent  reason  and  necessity  for  the  act. 

I,  therefore,  hope  that  the  Convention  will  hesitate  before  adopt- 
ing the  report  of  the  committee  in  this  respect,  and  that  the  article 
will  be  modified  as  suggested. 

Mr.  Lincoln  —  Mr.  Chairman,  this  discussion  has  been  already 
extended  so  long  that  I  do  not  wish  to  take  the  time  of  the  com- 
mittee by  going  over  the  ground  that  has  already  been  thoroughly 
discussed.  But  there  is  one  branch  of  this  inquiry  upon  which  little 
has  been  said,  except  that  the  suggestion  has  been  made  that  reor- 
ganization of  the  General  Terms  into  these  branches  of  the  Supreme 
Court  which  are  in  this  article  called  the  Appellate  Division,  will 
have  a  tendency  to  materially  diminish  the  work  of  the  Court  of 
Appeals.  It  seems  to  me,  Mr.  Chairman,  that  if  we  hope  for  that 
result  we  are  quite  likely  to  be  disappointed.  If  this  article  is 
adopted  substantially  as  presented  by  the  Judiciary  Committee,  with 
this  provision  for  the  Appellate  Division  of  the  Supreme  Court,  and 


August  21.]  CONSTITUTIONAL  CONVENTION.  1025 

the  provisions  for  appeals  from  that  court  to  the  Court  of  Appeals, 
with  the  limitations  removed  which  now  exist  by  statute,  even  with 
some  added  by  this  provision,  I  predict  that  the  work  of  the  Court 
of  Appeals  will  be  largely  increased  and  that  we  will  find  within 
the  next  year  or  two  more  cases  upon  the  Court  of  Appeals  calendar 
than  there  are  now.  One  important  limitation  which  has  heretofore 
existed  and  now  exists  upon  appeals  to  the  Court  of  Appeals  is 
removed,  and  that  is  the  money  limit;  now  every  one  who  practices 
law,  unless  it  is  the  cities,  where  lawyers  are  all  supposed  to  have 
large  cases,  every  one  knows  that  there  are  cases  through  the  State 
which  would  be  taken  to  the  Court  of  Appeals  were  it  not  for  this 
present  limitation  limiting  appeals  to  the  Court  of  Appeals  where 
the  amount  claimed  is  less  than  $500.  The  Legislature  by  this  new 
article  is  prohibited  from  imposing  any  money  limitation.  That 
would  permit  the  very  smallest  cases,  so  far  as  money  is  concerned, 
to  go  to  the  Court  of  Appeals  unless  the  power  is  restrained  by 
some  other  provision  in  this  article.  Now,  I  am  in  favor  of  remov- 
ing that  money  limit  and  I  am  in  favor  of  providing  a  court  of  last 
resort  of  sufficient  number  and  sufficient  strength  and  sufficient 
ability  to  dispose  of  every  question,  not  only  a  question  involving 
$10,000,  but  a  case  involving,  if  you  please,  but  ten  dollars.  Now 
I  believe  if  the  members  of  this  Convention  who  have  a  general 
practice  throughout  the  country  will  recall  their  own  experience, 
they  will  agree  with  me  when  I  suggest  a  removal  of  this  limitation 
will  open  the  doors  to  a  larger  number  of  appeals  to  the  Court  of 
Appeals.  Now,  while  I  have  not  been  vitally  interested  in  this 
increase  of  the  Court  of  Appeals  from  seven  to  nine,  it  is  a  very 
serious  question  for  this  Convention  to  determine  whether  seven 
judges  will  be  able  to  do  this  work,  and  whether  nine  or  some  other 
number  will  not  be  absolutely  necessary.  Now  I  do  not  wish  to 
prolong  this  discussion,  as  I  said  before,  but  I  believe  that  it  is  a 
consideration  that  ought  not  to  be  overlooked.  I  believe  if  the 
Judiciary  Committee  have  come  to  the  conclusion  that  the  work 
of  the  Court  of  Appeals  will  not  be  increased  they  will  be  doomed 
to  disappointment.  I  cannot  see  any  serious  objection  to  the 
increase  in  the  number  of  judges.  It  seems  to  me  the  number  is 
reasonable.  At  least,  the  court  still  retains  its  solidity  and  its  unity. 
I  cannot  agree  with  those  who  say  that  nine  men  cannot  do  more 
work  than  seven.  I  think  nine  men  may  do  more  work  than 
seven. 

Mr.  Ackerly  —  Mr.  Chairman,  I  desire  the  gentleman  to  give  way 
for  a  question.     I  would  like  to  know  from  Mr.  Becker,  or  any 
65 


1026  REVISED  RECORD.  [Tuesday, 

other  gentleman  on  this  floor,  whether  they  can  give  us  any  informa- 
tion that  the  Supreme  Court  of  the  United  States,  after  nine  judges 
were  appointed,  did  more  business  than  they  did  before  with  seven? 

Mr.  Lincoln  —  I  have  made  no  investigation  of  that  matter,  and 
I  am  not  prepared  to  answer  it.  I  think,  however,  nine  judges  ought 
reasonably  to  be  expected  to  do  more  work  than  seven.  Now,  I 
have  prepared  a  table  bearing  upon  the  increase  of  the  judges  of 
the  State  in  the  several  departments,  which  I  shall  present  at  the 
proper  time.  It  has  no  reference,  however,  to  the  point  under 
discussion  at  present.  The  question  is  a  very  simple  one  whether  we 
shall  increase  the  Court  of  Appeals  from  seven  to  nine. 

I  am  not  in  favor  of  this  provision  limiting  the  election  of  these 
extra  judges  one  to  each  voter.  I  think  that  that  should  be  stricken 
out  in  accordance  with  the  motion  already  made.  I  can  see  no 
serious  objection  to  increasing  the  seven  to  nine,  and  I  think,  in 
view  of  the  increase  of  the  work  of  the  court,  some  increase  in  the 
working  force  should  be  made. 

Mr.  Countryman  —  Mr.  Chairman,  if  there  is  any  disposition  or 
any  combination  among  the  members  of  this  Convention  to  increase 
the  number  of  judges  of  the  Court  of  Appeals  from  seven  to  twelve 
for  any  ulterior  purpose  relating  to  corporations,  or  to  the  interests 
of  capital  or  of  labor  or  of  politics,  I  wish  it  to  be  distinctly  under- 
stood that  I  am  not  a  party  to  any  such  combination.  If  there 
was  any  motive  of  that  kind  which  prompted  the  insertion  of  this 
provision  in  the  judiciary  article  while  it  was  before  the  Judiciary 
Committee,  I  wish  it  to  be  understood  that  I  was  not  a  party  to  any 
such  action  in  the  committee  increasing  the  number  from  seven  to 
nine.  The  only  motive  and  the  only  object,  I  submit,  which  we 
can  properly  have  in  view  in  determining  the  number  of  judges  of 
the  Court  of  Appeals,  is  to  secure  the  most  efficient  and  stable 
tribunal  as  the  court  of  last  resort  which  it  is  possible  for  us  to 
organize.  If  that  is  the  only  motive  or  purpose  which  prompts  us 
in  our  deliberations  here,  then  the  simple  question  now  involved  is 
whether  the  increase  of  the  number  of  judges  from  seven  to  nine  will 
make  it  more  efficient  for  the  purpose  for  which  it  is  organized ;  will 
enable  it  to  turn  out  more  work  than  it  has  heretofore  done.  If  it 
will  accomplish  that  purpose  the  number  should  be  increased  with- 
out hesitation.  If  it  will  not,  then  I  submit  that  the  number  ought 
not  to  be  increased  for  any  other  or  any  ulterior  purpose. 

Now,  sir,  it  seems  to  me,  that  the  matter  is  hardly  worthy  of 
discussion,  that  nine  men  acting  as  one  body  in  hearing  cases  and  in 
consulting  together  and  in  deciding  these  cases,  can  do  no  more 


August  21.]  CONSTITUTIONAL  CONVENTION.  1027 

work  than  seven.  They  can  hear  no  more  cases  certainly,  and  when 
they  come  to  deliberation  among  themselves  nine  only  results  in 
unnecessary  delay.  We  had  the  best  possible  illustration  of  that 
fact  in  the  deliberations  of  the  Judiciary  Committee.  It  was  com- 
posed of  seventeen  members,  and  I  assert,  without  fear  of  contra- 
diction by  any  of  the  members  of  that  committee,  that  if  it  had  been 
composed  of  seven  members  instead  of  seventeen,  it  would  have 
done  the  same  work  in  seven-seventeenths  of  the  time  taken  to  pro- 
duce this  article. 

Now,  sir,  objection  is  raised  as  to  the  number  seven  as  an 
improper  number  to  act  as  a  court  of  last  resort  in  reviewing  the 
decisions  of  the  subordinate  tribunal.  Why,  sir,  the  Court  of 
Appeals  of  England  for  many  years  consisted  of  three  judges  to 
review  all  of  the  decisions  of  the  Queen's  Bench  and  of  the  Court 
of  Exchequer  and  of  the  Court  of  Common  Pleas,  composed 
together  of  some  fifteen  or  sixteen  judges  or  more,  and  it  is  now 
only  composed  of  five  judges.  It  is  for  many  cases  the  court  of 
ultimate  resort  of  England,  and  when  they  go  to  the  House  of  Lords 
the  decisions  there  are  all  made  by  from  four  to  six  law  lords,  the 
only  number  to  take  part  in  the  decision  of  appeals  which  come  from 
the  subordinate  tribunal.  So  that  there  is  nothing  in  number  which 
should  make  us  fear  to  continue  the  Court  of  Appeals  under  its 
present  organization,  and  if  it  be  said,  as  it  has  been  said  frequently 
in  the  course  of  this  discussion,  that  the  Supreme  Court  of  the 
United  States  is  composed  of  a  greater  number,  of  nine  judges  in 
all,  I  simply  want  to  point  the  members  at  the  bar,  who  are  members 
of  the  Convention  also,  to  the  decisions  of  the  Supreme  Court  of  the 
United  States  as  compared  with  those  of  our  Court  of  Appeals,  and 
they  will  find,  by  an  examination  of  the  reports  of  the  decided  cases 
of  these  courts,  that  the  Court  of  Appeals  has  turned  out  one-fourth 
more  work  in  the  course  of  a  year  than  the  Supreme  Court  of  the 
United  States.  So  that  if  you  come  back  to  the  real,  the  only  prac- 
tical issue  involved  in  this  debate,  as  to  which  court  will  do  the 
most  efficient  work,  I  submit  that  we  have  a  practical  demonstration 
already  that  seven  is  a  better  number  than  nine  for  the  purpose  in 
view,  and,  therefore,  without  proceeding  into  detail,  I  submit  that 
this  amendment  should  prevail.  (Applause.) 

Mr.  E.  A.  Brown  —  Mr.  Chairman,  I  have  just  one  word  to  say 
on  this  subject,  and  will  make  my  remarks  very  brief.  I  have  been 
waiting  to  see  if  some  other  gentleman  would  take  the  floor  in 
regard  to  this  proposed  amendment  and  make  some  reference  to  the 
point  I  have  in  mind.  I  think,  Mr.  Chairman,  we  have  forgotten 
for  the  moment  that  we  represent  the  great  body  of  the  people  of  the 


1028  REVISED  RECORD.  [Tuesday, 

great  State  of  New  York,  and,  sir,  amongst  that  number  are  a  great 
many  in  the  agricultural  districts,  a  great  many  men  who  have 
homes  only  partly  paid  for  and  which  are  largely  encumbered,  and 
that  we  should  not  pass  at  this  time  any  act  creating  two  additional 
judges  of  the  Court  of  Appeals  of  this  State,  which  has  appeared 
not  only  uncalled  for,  but  unnecessarily  a  burdening  of  the  taxpay- 
ers of  this  State  in  the  added  sum  of  $24,000  per  year  by  way  of 
salaries.  This  point  is  more  important,  Mr.  Chairman,  when  we 
reflect  that  by  the  work  of  this  committee,  which  I  do  not  desire  to 
trench  upon,  or  cast  any  reflections  upon  the  increase  of  salaries  by 
the  increase  of  judges,  the  payment  of  the  salaries  has  become  so 
burdensome  upon  the  State  and  has  increased  to  $216,000  per  year. 
Now,  upon  that,  gentlemen,  if  you  wish  to  lay  the  last  feather 
that  breaks  the  camel's  back,  it  is  your  responsibility  and  not  mine. 
If,  in  addition  to  that  sum,  you  desire  to  lay  upon  the  backs  of  the 
taxpayers  of  this  State  $24,000  — 

At  this  point  First  Vice-President  Alvord  took  the  chair  and 
announced,  that  the  hour  of  five  o'clock  having  arrived,  the  Con- 
vention stood  adjourned  until  eight  o'clock  this  evening. 


EVENING  SESSION. 
Tuesday  Evening,  August  21,  1894. 

The  Constitutional  Convention  of  the  State  of  New  York  met, 
pursuant  to  recess,  in  the  Capitol,  at  Albany,  N.  Y.,  August  21, 
1894,  at  eight  o'clock  P.  M. 

President  Choate  called  the  Convention  to  order. 

Mr.  Jenks  presented  by  telegraph  a  statement  that  he  is  detained 
at  home  on  account  of  illness  in  his  family,  with  the  request  that 
he  be  excused  from  attendance  at  the  Convention  to-day. 

The  President  put  the  question  on  the  request  of  Mr.  Jenks  to 
be  excused  from  attendance,  and  he  was  so  excused. 

Mr.  Hottenroth  —  Mr.  President,  I  received  a  telegram  this 
morning  from  Mr.  Fraser  stating  that  he  is  ill  and  unable  to  attend 
the  Convention,  and  I  would  ask  that  he  be  excused  during  his 
illness :  also,  Mr.  Ohmeis  desires  to  be  excused  on  account  of  illness 
for  to-day. 

The  President  put  the  question  on  the  requests  of  Mr.  Fraser 
and  Mr.  Ohmeis  to  be  excused  from  attendance,  and  they  were  so 
excused. 


August  21.]  CONSTITUTIONAL  CONVENTION.  IO2Q 

Mr.  Mclntyre  —  Mr.  President,  I  would  like  to  be  excused  for 
Thursday  and  Friday  of  this  week,  on  account  of  a  death. 

The  President  put  the  question  on  the  request  of  Mr.  Mclntyre 
to  be  excused  from  attendance,  and  he  was  so  excused. 

Mr.  C.  B.  McLaughlin  —  Mr.  President,  I  ask  to  be  excused 
from  attendance  to-morrow  afternoon  and  Thursday. 

The  President  put  the  question  on  the  request  of  Mr.  McLaughlin 
to  be  excused  from  attendance,  and  he  was  so  excused. 

Mr.  Acker  took  the  chair  in  Committee  of  the  Whole  upon  the 
business  pending  at  the  time  recess  was  taken. 

The  Chairman  —  The  Convention  is  still  in  Committee  of  the 
Whole  on  general  order  No.  45,  and  Mr.  E.  A.  Brown  has  the  floor. 

Mr.  E.  A.  Brown  —  Mr.  Chairman,  there  is  another  considera- 
tion. The  additional  judge  in  Kings  county  will  get  $1,300  addi- 
tional, making  $341,300.  If  the  State  is  to  pay  the  salaries  of  the 
justices  of  the  Supreme  Court  in  the  first  district,  then  this  sum  will 
be  increased  by  the  additional  sum  of  $180,000,  which  will  make  a 
grand  total  of  increased  expense  to  the  people  of  the  State  of 
$521,300  annually.  Be  the  latter  proposition  as  it  may,  the  increase 
of  the  tax  levy  of  the  State  at  this  time,  upwards  of  $341,000,  is  both 
unwise  and  inexpedient,  and  although  it  be  granted  that  one-half 
of  that  amount,  or  $170,500,  is  borne  by  that  part  of  the  State  lying 
south  of  the  dividing  line,  spoken  of  by  the  learned  chairman  of  the 
Judiciary  Committee,  still  $170,500  of  this  immense  increase  must 
be  borne  by  the  agricultural  interests  and  home  owners  of  the 
balance  of  the  State.  It  has  been  suggested  that  the  Convention 
may,  by  its  action,  abolish  pensions  to  its  judges.  That  is  now  in 
doubt,  and  even  should  such  action  be  taken,  it  will  be  only  a 
small  saving  compared  with  this  immense  amount  of  added  burden. 

Sir,  I  greatly  fear  that  the  adoption  of  the  entire  judiciary  article 
will  be  jeopardized  by  this  unwarranted,  as  I  believe,  increase  in  the 
number  of  our  judges,  as  well  as  inflicting  an  unnecessary  burden 
of  taxation  at  a  time  of  general  and  widespread  financial  depres- 
sion. It  is  to  be  hoped  that  upon  the  mature  action  of  the  Conven- 
tion the  addition  of  two  unnecessary  judges  to  the  Court  of  Appeals 
bench  will  be  disapproved. 

Mr.  C.  B.  McLaughlin  —  Mr.  Chairman,  will  the  gentleman  per- 
mit a  question?  You  are  opposed  to  the  increase  of  judges  of  the 
Supreme  Court? 

Mr.  Brown  —  I  am. 

Mr.  McLaughlin  —  In  what  part  of  the  State  do  you  oppose  that? 


1030  REVISED  RECORD.  [Tuesday, 

Mr.  Bro^wn  —  In  my  own  district,  the  third  district. 
Mr.  Mclaughlin  —  Why  not  offer  an  amendment  so  that  we  can 
vote  and  excuse  your  district? 

Mr.  Brown  —  Because  that  point  is  passed.  And  I  would  say, 
in  addition,  I  am  not  a  candidate  for  Supreme  Court  judge  in 
my  district.  (Laughter.) 

The  Chairman- — The  question  now  arises  on  the  amendment  of 
Mr.  Brown,  as  amended  by  Mr.  Cassidy.  Mr.  Becker,  of  Erie,  calls 
for  a  division  of  the  question,  so  that  you  are  asked  to  vote  first  to 
strike  out,  in  line  16,  beginning  with  the  word  "add,"  down  to  and 
including  the  word  "judge,"  in  line  18. 

The  Chairman  put  the  question  on  the  amendment,  and  it  was 
determined  in  the  negative. 

The  Chairman  —  The  question  is  now  upon  the  amendment  of 
Mr.  Brown,  as  amended  by  Mr.  Cassidy. 

Mr.  Cassidy  —  Mr.  Chairman,  there  is  no  amendment  offered  by 
Mr.  Brown  here.  That  was  offered  as  a  substitute  for  Mr.  Brown's 
amendment,  and  Mr.  Brown's  amendment  was  withdrawn. 

Mr.  E.  R.  Brown  —  Mr.  Chairman,  the  gentleman  labors  under 
a  misapprehension.  I  offered  an  amendment  to  the  effect  sug- 
gested by  the  Chair,  and  the  gentleman  offered  a  substitute,  which, 
upon  investigation,  I  found  differed  from  the  amendment  offered 
be  me  in  striking  out  the  word  "  any,"  etc.  In  all  other  respects  it 
was  the  same  as  mine,  and  I  accepted  it  in  that  regard. 

The  Chairman  —  The  question  now  occurs  upon  the  amendment 
of  Mr.  Brown,  as  amended  by  Mr.  Cassidy. 

Mr.  Veeder  —  I  would  like  to  have  it  read,  Mr.  Chairman. 

The  Chairman  —  It  provides  for  striking  out  all  in  line  14,  down 
to  the  word  "judges." 

Mr.  Maybee  —  Mr.  Chairman,  I  ask  that  the  Secretary  read  the 
entire  section  as  amended. 

The  Secretary  read  the  section  as  follows : 

"  The  Court  of  Appeals  is  continued.  It  shall  consist  of  the  chief 
judge  and  associate  judges  now  in  office,  who  shall  hold  their  offices 
until  the  expiration  of  their  respective  terms,  and  of  their  suc- 
cessors, who  shall  be  chosen  by  the  electors  of  the  State.  The 
official  terms  of  the  chief  judge  and  associate  judges  shall  be  four- 
teen years  from  and  including  the  first  day  of  January  next  after 
their  election.  Five  members  of  the  court  shall  form  a  quorum, 
and  the  concurrence  of  four  shall  be  necessary  to  a  decision.  The 


August  21.]  CONSTITUTIONAL  CONVENTION.  1031 

court  shall  have  power  to  appoint  and  to  remove  its  reporter,  clerk 
and  attendants." 

Mr.  Alvord  —  Mr.  Chairman,  I  call  for  a  rising  vote. 

Mr.  Moore  —  Mr.  President,  I  rise  to  a  point  of  order.  My  point 
of  order  is  this,  that  the  motion  should  be  put  in  two  parts.  It  was 
agreed  that  the  question  should  be  put  separately  this  afternoon. 

The  Chairman  —  The  point  of  order  is  very  well  taken,  and  the 
motion  has  already  been  put  and  carried  on  one  part.  The  ques- 
tion is  now  upon  the  second  part. 

Mr.  Bowers  —  Mr.  Chairman,  I  desire  to  ask  if  the  leaving  in  of 
five  members  to  constitute  a  quorum  is  intentional? 

Mr.  Marshall  —  Mr.  Chairman,  I  will  state  that  that  is  the  present 
Constitution.  It  has  not  been  changed. 

Mr.  A.  H.  Green  —  Mr.  Chairman,  this  amendment  now  before 
the  House,  I  understand,  is  as  to  the  terms  of  judges. 

The  Chairman  —  Oh,  no;  it  is  upon  the  number  of  judges. 

The  Chairman  put  the  question  on  the  amendment,  and  it  was 
determined  in  the  affirmative,  by  a  rising  vote. 

Mr.  A.  H.  Green  —  Mr.  Chairman,  I  move  to  amend,  in  line  14, 
by  inserting  the  words  "  seven  years  "  in  the  place  of  "  fourteen 
years." 

The  Chairman  —  The  Chair  holds  that  that  motion,  having  once 
been  voted  upon  and  lost,  is  not  in  order. 

Mr.  Green  —  I  think  the  Chair  is  mistaken.  That  has  not  been 
voted  upon.  The  motion  voted  upon  was  the  Supreme  Court. 
This  is  the  Court  of  Appeals. 

The  Chairman  —  The  Chair  begs  the  gentleman's  pardon. 

Mr.  Green  —  Now,  sir,  I  hope  this  amendment  may  be  adopted, 
and  that  we  may  have  some  reduction  of  these  extreme  terms  that 
are  proposed.  I  was  very  much  surprised,  in  the  course  of  this  dis- 
cussion, to  hear  the  criticisms  made  upon  the  present  Court  of 
Appeals. 

Mr.  Pratt  —  Mr.  Chairman,  I  rise  to  a  point  of  order.  There  is 
no  question  before  the  House. 

The  Chairman  —  There  is  a  question  pending. 

Mr.  Green  —  One  gentleman  remembered  that  when  political 
questions  came  up,  this  court  seemed  to  be  oblivious  of  its  duty,  and 
decided  questions  according  to  their  political  complexion.  Then 
we  find  that  there  is  a  suggestion  here,  originating  from  my  friend 
from  New  York  (Mr.  Bowers)  and  reiterated  by  the  gentleman  from 


1032  REVISED  RECORD.  [Tuesday, 

Erie  (Mr.  Becker),  that  we  wanted  new  blood  in  this  court;  that 
we  needed  an  infusion  of  new  life.  This  is  the  precise  language,  I 
think,  that  those  gentlemen  used. 

Now,  when  we  come  to  analyze  it,  what  does  it  mean?  What 
does  it  mean  when  we  say  we  want  new  blood?  Does  it  mean  that 
this  court  has  become  so  fossilized  by  long  terms  that  they  are  not 
fit  to  discharge  their  duties?  The  criticisms,  though  somewhat  sub- 
dued and  muffled,  are  as  severe  criticisms  as  I  ever  heard  upon  the 
Court  of  Appeals,  and  coming  from  that  side  of  the  House.  Now, 
sir,  if  this  court  has  become  fossilized,  as  these  gentlemen  seem  to 
think,  I  think  it  is  time  that  we  not  only  reduced  it  by  two,  but  that 
we  wiped  it  out  and  started  with  fresh  blood  all  the  way  through. 

Now,  as  to  some  other  criticisms  that  have  been  made  here,  and 
of  which  I  took  a  brief  note  in  passing.  One  gentleman  thought, 
and  I  think  it  was  my  friend  from  New  York,  coming  from  our  end 
of  the  State,  which  bears  one-half  the  taxation  of  the  whole  State, 
that  the  argument  of  economy  was  hardly  worth  considering. 
Here  we  are  to  put  nearly  a  quarter  of  a  million  more  money  into 
the  judicial  machinery  of  the  State,  and  that  argument  rests  as 
lightly  here  as  the  volatile  air.  Our  friend,  Judge  Moore,  thinks 
that  he  could  go  to  every  valley  and  hill  and  talk  to  his  con- 
stituency in  favor  of  adding  a  quarter  of  a  million  to  the  expense 
of  the  judiciary  here.  I  am  not  in  favor  of  any  such  thing.  I 
think  the  number  we  have  is  adequate  and  that  we  want  no  more 
additions  to  the  court.  I  was  very  much  interested  when  I  saw 
our  friend  from  Cattaraugus  (Mr.  Vedder),  the  proposed  future 
Lieutenant-Governor  of  the  State,  which  chair  he  will  adorn  if 
he  gets  it.  (Applause.)  I  suppose  he  is  about  as  good  a  man  as  we 
can  get;  he  delivered  a  panegyric  here  on  the  work  of  this  com- 
mittee, which  has  been  three  months  in  session,  such  a  panegyric  as 
I  rarely  ever  heard  upon  a  piece  of  literary  construction.  Now, 
sir,  what  was  it?  Why,  Mr.  Chairman,  the  very  first  blow  of  his 
right  arm  shattered  one  of  the  very  foundation  stones  of  this  report, 
and  it  was  stricken  out,  I  think,  almost  by  unanimous  consent. 
What  was  it?  "And  at  said  election  each  elector  may  vote  for  only 
one  judge."  Did  anybody  on  the  committee  attempt  for  a  moment 
to  defend  that  provision?  And  in  shattering  that  stone  what  is 
to  become  of  the  rnain  edifice?  I  can  already  see  clefts  in  other 
foundation  stones  that  are  sure  to  make  this  edifice  fall.  Now,  sir, 
that  was  a  most  unconscious  tribute  to  the  power  of  the  gentleman 
from  Cattaraugus.  Eulogizing  this  structure  as  the  most  magni- 
ficent work  that  man  ever  attempted,  he  at  one  blow,  knocks  it  over. 
What  must  be  his  power?  (Applause  and  laughter.) 


August  21.]  CONSTITUTIONAL  CONVENTION.  1033 

Now,  sir,  I  am  very  glad  to  see  and  to  welcome  a  change  that 
seems  to  be  coming  over  the  gentlemen  of  this  Convention.  It 
seemed  to  me  for  a  while  that  if  anybody  wanted  to  succeed  in 
getting  through  an  amendment  here,  the  longest  term,  the  highest 
pay  and  the  greatest  number  of  judges  were  the  features  that  were 
more  attractive  than  any  others  that  could  be  proposed  here.  But 
now,  that  seems  to  be  fading  away  and  I  am  very  glad  to  see  it. 
The  contrary  of  that  idea  seems  in  some  degree  likely  to  obtain 
here,  as  I  think  it  ought  to  obtain.  The  shortest  terms,  the  least 
pay,  and  the  lowest  number.  (Laughter.)  Mr.  Chairman,  this 
may  be  amusing  to  the  gentlemen,  but  I  say  there  is  a  great  deal  of 
truth  in  it.  My  observation  has  been  that  the  higher  salaries  you 
pay  the  judges,  the  worse  men  you  get.  There  is  logic  and  reason 
in  that.  Does  anybody  doubt  that  a  man  ought  to  be  fairly  paid 
for  his  services?  No.  Who  doubts  that  we  ought  to  have  an 
adequate  number  of  judges?  Who  doubts  that  there  are  excellent 
judges  on  the  bench?  Take  that  typical  judge,  Charles  Daniels,  of 
Buffalo,  a  man  who  is  an  ornament  to  the  bench.  Nobody  doubts 
these  things,  but  we  do  not  want  the  higher  pay.  All  it  does  is  to 
put  the  judges  into  the  arena  of  ward  politics.  I  have  seen  enough 
of  it  in  New  York,  and  it  exists  there  to-day. 

Now,  sir,  I  trust  that  in  the  interests  of  economy,  in  the  interests 
of  effective  public  service  by  the  judiciary,  and  with  some  regard  to 
the  taxpayers  of  this  State,  we  may  be  exempted  from  any  increase 
in  the  number  of  judges  of  this  court,  any  increase  of  the  terms  and 
any  increase  of  the  salaries.  I  move  you,  Mr.  Chairman,  that  the 
term  be  made  seven  years,  instead  of  fourteen  years. 

Mr.  Moore  —  Mr.  Chairman,  I  move  to  amend  the  amendment, 
by  making  the  term  ten  years. 

The  Chairman  put  the  question  on  the  amendment  of  Mr. 
Moore,  and  it  was  determined  in  the  negative. 

The  Chairman  put  the  question  on  the  amendment  offered  by 
Mr.  Green,  and  it  was  determined  in  the  negative. 

Mr.  Parmenter  —  Mr.  Chairman,  I  desire  to  renew  my  amend- 
ment to  section  seven,  which  has  been  sent  up.  But  I  desire,  in 
view  of  the  vote  just  taken  by  the  Convention,  to  eliminate  the 
provision  which  provided  that  at  the  first  election  the  seven  addi- 
tional associate  judges'  minority  representation  shall  be  applied. 
I  will  strike  that  out,  and,  with  that  eliminated,  I  ask  to  have  the 
amendment  read. 

The  Secretary  read  the  amendment  of  Mr.  Parmenter,  as  follows: 
"  The  Court  of  Appeals  is  continued.     It  shall  consist  of  the  chief 


1034  REVISED  RECORD.  [Tuesday, 

judge  and  associate  judges  now  in  office  until  the  expiration  of  their 
respective  terms,  and  of  seven  additional  associate  judges,  who 
shall  be  chosen  by  the  electors  of  the  State  at  the  first  general 
election  held  after  the  adoption  of  this  article.  The  official  terms 
of  the  chief  judge  and  the  associate  judges  shall  be  fourteen  years 
from  and  including  the  first  day  of  January  next  after  their  election. 
After  the  additional  associate  judges  are  elected,  any  seven  mem- 
bers of  the  court  shall  constitute  a  quorum,  and  the  concurrence  of 
five  of  such  quorum  shall  be  necessary  to  a  decision.  Two  quorums 
of  said  court  may  sit  at  the  same  time  or  alternately,  as  the  court 
shall  determine.  The  court  or  the  chief  judge  may  order  that  any 
particular  case  or  class  of  cases  shall  be  heard  before  the  full  bench, 
or  before  not  less  than  nine  judges,  and  in  every  such  case  the 
concurrence  of  a  majority  of  the  judges  before  whom  any  such  case 
is  argued  shall  be  necessary  to  a  decision.  The  court  shall  have  the 
power  to  appoint  and  remove  its  reporter,  clerk,  deputy  clerk  and 
such  other  attendants  as  in  its  judgment  shall  be  necessary." 

Mr.  Parmenter  —  Mr.  Chairman,  the  contention  of  this  Conven- 
tion has  been  mainly  between  a  court  of  seven  judges  and  a  court 
of  nine  judges.  In  respect  to  that  contention,  I  took  no  particular 
part.  In  fact,  I  might  say,  in  the  language  of  the  poet,  slightly 
modified,  "A  rot  on  both  your  houses."  I  do  not  agree  with  either 
of  them,  and  I  think  that  the  only  solution  of  the  problem  involved 
in  creating  a  new  Court  of  Appeals  is  the  one  that  I  propose,  or  a 
similar  one.  I  ask  for  a  few  moments  to  state  my  reasons  for  the 
position  I  take,  and  I  do  not  intend  to  make  any  long  speech, 
because  I  am  going  to  follow  the  admonition  of  the  learned  Presi- 
dent in  that  respect.  I  simply  desire  to  make  a  few  statements, 
which  will  be  addressed  mainly  to  the  lawyers,  who  constitute  quite 
a  majority  of  this  Convention. 

When,  in  the  history  of  this  State,  did  the  idea  arise  for  the  crea- 
tion of  a  Court  of  Appeals?  It  was  during  the  Convention  of  1846, 
when  they  sought  to  unite  in  its  administration  both  law  and 
equity,  and  they  proposed  a  Court  of  Appeals  to  take  the  place  of 
the  chancellor  and  of  the  Court  for  the  Correction  of  Errors.  The 
Convention  of  1846  hit  upon  the  plan  of  having  a  court  of  eight 
judges,  four  to  be  elected  by  the  people  and  four  to  be  taken  from 
justices  of  the  Supreme  Court,  who  should  sit  in  alternate  years. 
They  organized  such  Appellate  Court  under  those  auspices  in  1847, 
and  it  continued  down  until  the  present  court  was  organized  under 
the  election  of  1870.  Now,  what  efficacy  was  exemplified  in  the 
first  court?  They  were  all  good  judges,  and  I  am  not  here  to  raise 
a  word  of  complaint  against  any  of  the  judges  that  sat  in  the  Court 


August  21.]  CONSTITUTIONAL  CONVENTION.  1035 

of  Appeals  from  1847  down  to  the  present  time.  I  think  they  were 
all  able  judges.  The  question  is,  how  much  work  can  they 
do,  and  how  much  work  is  there  for  them  to  do?  The 
original  Appellate  Court  commenced  running  behind  on  its 
calendar.  That  continued  for  a  number  of  years,  and  finally 
the  question  began  to  be  agitated  by  the  people  that  this  court 
was  not  so  fully  equipped  as  to  be  able  to  perform  all  the  duties  that 
ought  to  be  imposed  upon  a  court  of  last  resort.  You  will  remem- 
ber that  at  that  time  the  population  of  the  State  was  about  half  as 
lajjge  as  it  is  now.  Finally  that  court  became  so  crowded  with  busi- 
ness that  in  1869  the  people  passed  affirmatively  upon  a  question 
at  the  polls  providing  for  a  new  Court  of  Appeals,  to  consist  of  a 
chief  judge  and  six  associate  judges,  all  to  be  elected  by  the  people. 
Now,  in  order  to  give  them  a  good  start,  it  was  provided  that  they 
should  commence  with  a  clean  calendar,  and  to  do  that  the  old 
judges  of  the  Court  of  Appeals,  whose  terms  had  not  expired,  were 
continued,  and  a  new  commissioner  was  appointed  to  create  a  court 
of  five  commissioners,  consisting  of  those  judges  of  the  Court  of 
Appeals  who  were  still  in  office  and  others  appointed  in  the  places 
of  those  whose  terms  had  expired.  Then  this  present  Court  of 
Appeals  started  with  also  a  commission  to  discharge  such  duties,  to 
clear  up  the  calendar  that  was  then  away  behind.  That  went  on, 
and  the  existing  court  discharged  its  duties  as  well  -as  might  be 
expected.  The  .commissioners  were  excellent  judges,  no  fault  is 
to  be  found  with  them  at  all,  but  they  passed  upon  litigated  ques- 
tions that  filled  seven  volumes  of  our  reports,  and  by  that  time  it 
became  certain  that  the  people  demanded  a  new  court  or  rather  an 
enlargement  of  the  court.  As  I  said  before,  the  present  court  was 
established  in  1870,  under  the  amendment  to  the  Constitu- 
tion which  was  adopted  in  1869,  and  the  judges  were  elected. 
At  the  first  election  of  judges  this  minority  representation 
was  introduced,  and  those  who  voted  at  that  time  could 
only  vote  for  a  chief  judge  and  no  more  than  four  of  the 
associate  judges.  That  provision  as  well  as  the  majority  report 
induced  me  to  insert  the  clause  which  I  have  stricken  out,  in 
view  of  the  vote  taken  by  the  house,  requiring  that  no  man  should 
vote  for  more  than  four,  a  majority  of  those  additional  judges. 
That  provision  is  now  out  of  the  way.  I  cared  nothing  about  it 
myself,  but  I  thought  perhaps,  having  been  first  put  into  the  present 
Constitution,  that  it  was  not  a  bad  principle,  and  I  do  not  think  it  is 
a  bad  one  now,  but  it  is  out  of  the  way.  The  new  court  started,  and 
what  has  been  its  course  since  1870?  I  think  that  the  lawyers  in 
this  Convention  will  agree  with  me  that  it  has  not  discharged  the 


1036  REVISED  RECORD.  [Tuesday, 

duties  which  it  was  supposed  it  could  discharge.  Now,  I  am 
opposed  to  a  Court  of  Appeals  with  seven  judges,  because  I  con- 
scientiously believe  that  the  number  of  judges  is  too  small  to 
discharge  the  duties  that  come  before  that  court  to  be  discharged, 
and  I  am  equally  opposed  to  nine  judges,  because  I  think  that 
number  is  not  large  enough,  for  the  same  reason. 

The  court  organized  in  1870  continued  very  well  until  it  had 
filled  some  three  or  four  volumes  of  reports,  I  think  they  are  the 
forty-third,  forty-fourth  and  forty-fifth;  but  they  then  began  to 
discover  that  they  could  not  clear  up  their  calendar,  and  what  was 
done  to  overcome  such  difficulty?  They  commenced  report- 
ing by  memoranda,  and  continued  that  system  down  to  the  last 
volume  of  those  reports  which  is  141,  the  last  one  that  I  have 
received.  At  the  end  of  every  volume,  from  volume  forty-six  down 
to  141,  except  some  of  the  volumes  where  the  decisions  of  the 
commissioners  were  reported,  if  you  will  look  at  it,  you  will  find 
at  least  from  thirty  to  fifty  decisions  only  reported  very  briefly. 
From  thirty  to  fifty  decisions  appear  in  each  one  of  these  volumes 
where  the  only  information  a  litigant  can  get  in  regard  to  them 
is  that  they  affirmed,  or  they  reversed,  or  they  dismissed  the  appeal. 
Why  did  they  do  that?  The  old  Court  of  Appeals  did  not  do  it. 
They  reported  the  decisions  in  full.  If  there  were  dissenting  opin- 
ions they  were  reported,  too.  The  present  court  abandoned  that 
notion,  because  it  could  not  discharge  the  duties  that  were  imposed 
upon  it,  and  hence  it  is  that  in  the  seventy-eighth  or  seventy-ninth 
volumes,  the  last  volumes  of  the  Court  of  Appeals  reports,  I  think 
you  will  find  the  lowest  will  be  about  thirty  and  the  highest  about 
fifty,  decisions  reported  by  way  of  memoranda  merely,  and  most  of 
them  are  reported  as  "judgment  affirmed,"  or  "judgment  reversed," 
or  "  appeal  dismissed."  About  3,000  of  those  decisions  appear  in  the 
last  numbers  of  the  reports. 

Now,  I  submit  to  the  lawyers  especially  of  this  Convention, 
whether  that  court,  as  now  constituted,  is  a  proper  court  to  be 
continued  under  existing  circumstances.  What  is  to  be  done? 
You  must  either  abridge  the  right  of  an  appeal,  or  you  must  enlarge 
the  court;  and  I  submit  in  my  proposition,  and  you  may  vote  upon 
it,  that  the  court  shall  hereafter  consist  of  judges  enough  to  make 
two  quorums  of  seven  each,  so  that  those  two  quorums,  according 
to  the  rules  and  regulations  of  the  court  itself,  may  sit  alternately, 
or  sit  in  two  quorums  at  the  same  time.  By  doing  that,  I  do  not 
think  it  will  lessen  the  character  of  the  court,  and  I  think  it  would 
be  a  very  useful  thing  to  do  in  the  highest  court  of  the  State;  we 
can  then  have  a  court  of  last  resort  to  commence  on  the  first  day 


August  21.]  CONSTITUTIONAL  CONVENTION.  1037 

of  October  in  each  year,  and  continue  for  five  days  in  a  week 
until  the  last  of  June  and  then  give  the  judges  their  usual  vacation 
of  about  three  months.  With  that  course  of  procedure  what  is 
likely  to  be  accomplished?  Why,  they  will  undoubtedly  clear  up 
their  calendar.  You  will  then  hear  no  more  complaints  about  run- 
ning behind.  You  will  not  want  a  second  division.  I  am  disclosing 
no  secret  when  I  say  that  this  Second  Division  was  provided  for 
and  voted  upon  favorably  in  the  committee,  but  it  was  stricken  out 
afterwards  for  some  reason.  It  leaves  the  court  in  this  situation; 
here  is  an  appellate  court  that  cannot,  judging  from  past  experi- 
ence, discharge  all  the  duties  that  ought  to  be  imposed  upon  a 
court  of  last  resort  in  a  State  like  the  State  of  New  York.  Look 
at  the  population  for  a  moment.  The  population  in  this  State  to-day 
is  about  2,500,000  more  than  it  was  in  1870,  when  the  present  court 
was  inaugurated.  And  the  increase  of  population  in  this  State 
since  1870  will  number  more  people  than  exist  at  the  present  day 
in  any  one  of  thirty-nine  out  of  forty-four  States  of  this  Union. 
Why  should  we  continue  this  old  court;  small  in  number  and  ineffi- 
cient—  not  inefficient  because  the  judges  are  not  competent,  but 
inefficient  because  under  the  laws  the  cases  that  shall  go  to  the 
Court  of  Appeals  properly  cannot  be  disposed  of  as  they  ought  to 
be  disposed  of  by  the  court  as  it  now  exists. 

Now,  what  is  attempted  to  be  done  here?  We  have  not  come  to 
the  section  yet  which  confers  jurisdiction.  It  is  plain  that  the  court 
as  now  organized  cannot  discharge  all  the  duties  that  properly 
belong  to  it,  and  therefore  the  majority  of  the  committee  have 
proposed  two  additional  judges,  which  have  been  voted  down. 
Now  those  two  additional  judges  would  undoubtedly  furnish  some 
little  relief,  but  the  relief  that  is  needed  is  a  relief  which  increases 
the  number  of  judges,  so  that  we  can  have  a  continuous  court  and 
the  lawyers  may  know  that  when  October  arrives  we  will  have 
a  Court  of  Appeals  that  will  sit  continuously  until  the  latter  part 
of  June,  when  the  judges  will  take  their  usual  vacation,  and  they 
will  then  clear  up  their  calendar.  In  no  other  way,  in  my  judgment, 
can  they  keep  abreast  with  their  work.  What  do  the  committee  in 
the  majority  report  propose  by  way  of  relief?  I  submit  that  they 
have  increased  rather  than  abridged  the  jurisdiction  of  the  Court 
of  Appeals  by  this  article.  The  Court  of  Appeals  now  exercises 
jurisdiction  only  on  questions  of  law,  and  it  can  only  pass  upon  facts 
where  they  are  undisputed,  except  in  capital  cases.  If  there  be  a 
conflict  of  evidence  in  the  lower  courts  on  any  given  question,  the 
Court  of  Appeals  will  not  intervene.  They  confine  themselves 
to  the  jurisdiction  conferred  by  certain  sections  of  the  code  that 


REVISED  RECORD.  [Tuesday, 

define  the  same,  and  while  some  gentlemen  may  not  precisely 
like  to  entrust  such  matters  to  the  Legislature,  yet  they  should 
understand  that  the  Legislature,  in  defining  its  jurisdiction,  is 
only  reflecting  the  will  of  the  late  David  Dudley  Field,  the 
Lycurgus  of  the  nineteenth  century.  He  has  proposed  in  the  Code 
of  Civil  Procedure  the  jurisdiction  that  the  Court  of  Appeals  should 
possess. 

Now  the  Committee  on  the  Judiciary  undertake  to  legislate,  in 
addition  to  making  a  Constitution,  and  propose  to  take  away  the 
right  of  the  Legislature  to  interfere  by  enlargement  with  the  juris- 
diction conferred  by  the  Constitution  upon  this  Court  of  Appeals. 
It  is  all  done  undoubtedly  for  the  purpose  of  relieving  the  court. 
I  do  not  like  to  hear  this  talk  of  relieving  the  court.  The  court  can 
relieve  itself  if  it  wants  to  resign,  but  if  it  will  not  do  that ;  then  let 
it  do  its  duty,  and  we  need  not  talk  any  more  about  relieving  the 
court  of  last  resort. 

The  ninth  section  provides  for  an  abridgment  of  the  jurisdiction 
of  the  Court  of  Appeals,  in  order  that  seven  judges  may  discharge 
their  duties.  We  have  not  yet  come  to  that  section,  but  I  may  as 
well  allude  to  it  because  it  illustrates  my  point:  "No  unanimous 
decision  of  the  Appellate  Division  of  the  Supreme  Court  that  there 
is  evidence  supporting  or  tending  to  sustain  a  finding  of  fact  or  a 
verdict  not  directed  by  the  court,  shall  be  reviewed  by  the  Court  of 
Appeals,  except  where  the  punishment  is  of  death,"  etc.  What 
does  that  mean?  Does  anybody  know?  I  for  one  admit  that  I 
do  not  know.  Where  the  Appellate  Division  of  the  Supreme  Court 
declares  that  there  is  evidence  supporting  or  tending  to  support 
a  finding  of  fact  or  a  verdict  not  directed  by  the  court,  that  shall 
not  be  reviewed  by  the  Court  of  Appeals.  Are  the  justices  going 
to  make  a  special  statement  in  their  decision  on  that  subject?  Sup- 
pose the  case  of  an  appeal  from  a  judgment  on  a  verdict  of  a  jury, 
and  there  are  exceptions  in  it.  Those  exceptions  raise  questions 
of  law.  This  provision  says,  and  the  present  law  is,  that  we  may 
bring  an  appeal  from  those  questions,  but  when  the  Appellate 
Division  of  the  Supreme  Court  has  heard  argument,  and  decided 
a  case  by  affirming  or  reversing  it,  are  they  to  insert  a  clause  in 
their  decision  to  the  effect  that  there  are  facts  tending  to  prove  the 
correctness  of  the  verdict?  If  they  do  that  then  the  Court  of  Appeals 
is  shorn  of  all  jurisdiction  over  the  question  involved.  Nobody 
knows  better  than  the  lawyers  in  this  Convention  that  where  there 
is  no  disputed  question  of  fact,  although  there  are  questions  of  fact 
in  the  case,  yet  that  the  conclusion  to  be  drawn  from  those  undis- 


August  21.]  CONSTITUTIONAL  CONVENTION.  1039 

puted  facts  is  a  question  of  law  and  the  court  has  uniformly  exer- 
cised jurisdiction  by  examining  that  question  and  passing  upon  it. 

Now  it  is  stated  in  the  majority  report:  "Except  where  the  judg- 
ment is  of  death,  appeals  shall  be  taken  to  said  court  only  from 
judgments  or  orders  entered  upon  decisions  of  the  Appellate  Divi- 
sion of  the  Supreme  Court,  finally  determining  actions  or  special 
proceedings,  and  from  orders  granting  new  trials  on  exceptions, 
where  the  appellants  stipulate  that  upon  affirmance,  judgment  abso- 
lute shall  be  rendered  against  them." 

The  Committee  on  Judiciary  have  before  stated  that  the  court 
shall  have  jurisdiction  over  all  questions  of  law,  and  I  repeat  again 
how,  when  you  undertake  to  abridge  the  jurisdiction,  are  you  going 
to  get  any  such  question  before  the  Court  of  Appeals  unless  it  is 
that  the  Appellate  Division  of  the  Supreme  Court  shall  deliberately 
state  that  the  facts  are  sufficient  or  at  least  tend  to  prove  a  given 
fact? 

Again,  while  in  the  majority  report  they  have  attempted  to 
abridge  the  jurisdiction  for  the  purpose  of  relieving  the  court  of 
last  resort,  they  actually  enlarge  the  jurisdiction  by  wiping  out  the 
$500  limitation  on  appeals  from  money  judgments.  They  go  further. 
Now,  you  cannot  appeal  from  a  judgment  arising  in  a  justice's  court. 
You  may  go  to  the  General  Term,  but  not  to  the  Court  of  Appeals. 
They  have  stricken  that  out  of  this  proposed  amendment.  If  there 
is  a  question  of  law  arising  in  an  action  tried  in  a  justice's  court, 
this  proposed  amendment  provides,  that  being  a  question  of  law, 
the  Court  of  Appeals  may  take  jurisdiction  of  that  question.  So, 
therefore,  by  the  majority  report  they  have  in  fact  enlarged  the  juris- 
diction. I  think  it  will  be  found,  if  this  section  is  approved  by  the 
people,  that  a  court  of  seven  judges  which  cannot  perform  their 
duties  now,  will  be  burdened  with  a  heavier  load  of  jurisdiction 
imposed  upon  it  by  this  article. 

I  said  I  was  going  to  be  brief,  and  I  have  now  stated  about  all 
I  care  to  say.  In  my  opinion  the  only  relief  we  should  furnish  the 
Court  of  Appeals  is  to  give  them  a  sufficient  force  with  which  to 
discharge  their  duties,  not  take  away  any  of  those  duties,  nor  abridge 
the  right  of  appeal.  It  is  said  by  the  majority  report  that  a  man 
has  no  right  to  more  than  one  appeal.  I  should  like  to  know  where 
that  doctrine  came  from.  I  may  go  further:  The  Legislature  up 
to  this  time  has  had  a  right  to  say  to  litigants,  you  have  no  right 
to  appeal,  or  you  shall  only  appeal  once.  The  Legislature  has  exer- 
cised that  power  and  they  have  such  right.  But  what  is  the  policy 
of  the  State?  Is  it  that  there  shall  be  but  one  appeal?  That  has 


1040  REVISED  RECORD.  [Tuesday, 

never  been  established  as  the  policy  of  the  State  of  New  York  to 
my  knowledge. 

Now,  I  say  in  conclusion,  if  the  gentlemen  will  consider  the  mat- 
ter carefully,  that  the  only  course  left  for  us  to  pursue  in  a  matter 
which  is  to  last  for  the  next  twenty  years,  the  time  which  will 
undoubtedly  be  provided  for  the  holding  of  a  new  Convention,  is  to 
enlarge  the  number  of  judges  of  the  Court  of  Appeals  so  that  there 
can  be  two  working  quorums,  and  let  them  regulate  their  own 
practice.  It  would  be  an  honorable  court,  no  lowering  of  its 
dignity,  and  I  have  no  doubt  that  the  new  additional  judges  will 
heartily  concur  with  the  present  members  when  they  are  right,  and 
will  boldly  dissent  from  them  when  they  are  deemed  wrong.  And 
if  they  shall  do  that,  we  will  have  a  court  that  nobody  will  be 
ashamed  of.  Nobody  could  point  their  finger  at  it  and  say,  you  are 
an  inadequate  court,  you  are  unable  to  discharge  the  duties  that  the 
law  imposes  upon  you. 

I  submit  to  the  candid  judgment  of  the  lawyers  in  this  Conven- 
tion and  to  the  Convention  itself  this  proposition,  and  if  the  majority 
of  the  Convention  shall  vote  against  me  I  can  live  under  that 
administration  just  as  long  as  they  can.  (Applause.) 

The  Chairman  put  the  question  on  the  substitute  to  section  7, 
offered  by  Mr.  Parmenter,  and  it  was  determined  in  the  negative. 

Mr.  Dickey  —  Mr.  Chairman,  I  renew  the  amendment  that  I 
offered  earlier  in  the  day. 

The  Secretary  read  the  amendment  of  Mr.  Dickey. 

Mr.  Dickey  —  Mr.  Chairman,  the  purpose  of  this  amendment  is 
to  leave  in  the  Constitution  the  present  provision  upon  this  subject. 
The  amendment,  as  proposed  by  me,  is  in  the  exact  wording  of  the 
present  Constitution  providing  for  the  Second  Division  of  the  Court 
of  Appeals.  The  Judiciary  Committee  in  their  report,  in  their 
revised  article,  have  abrogated  that  provision  entirely.  The  people 
by  their  vote  adopted  that  provision  only  a  few  years  ago,  and  they 
did  it  because  there  was  a  crying  necessity  for  it.  The  business 
of  the  Court  of  Appeals  was  so  clogged  up  and  so  in  arrears  that 
there  was  a  necessity  for  some  relief.  The  Legislature  proposed  this 
relief,  two  Legislatures  in  succession,  and  it  was  submitted  to  the 
people  and  voted  upon  by  them.  If  there  was  a  necessity  then, 
when  the  Court  of  Appeals  was  composed  of  seven  judges,  as  we 
have  decided  to-night  to  leave  it,  then  the  strong  probability  is  that 
the  necessity  will  arise  soon  again  for  some  such  relief. 

No  member  of  the  Judiciary  Committee  will  say  that  there  will  be 
no  such  need.  They  hope  there  will  not  be,  but  it  is  a  mere  con- 


August  21.]  CONSTITUTIONAL  CONVENTION.  1041 

jecture,  rather  than  anything,  which  they  can  say  with  certainty. 
In  my  opinion,  while  the  other  amendments  to  this  judiciary  article 
may  tend  in  some  degree  to  lessen  litigation,  in  other  respects  they 
will  tend  to  increase  litigation  that  will  reach  the  highest  court. 
In  the  matter  of  doing  away  with  the  $500  limitation,  that  will  be 
prolific  of  lawsuits  to  be  carried  to  the  court  of  last  resort,  more  so, 
indeed,  by  far,  than  they  will  save  by  a  requirement  that  the  Court 
of  Appeals  shall  pass  only  upon  questions  of  law,  and  shall  not 
have  to  do  with  questions  of  fact ;  because  the  questions  of  fact  that 
now  go  to  the  Court  of  Appeals  are  largely  mixed  with  questions 
of  law,  and  the  litigation,  because  of  this  new  limitation,  will  be 
but  small  in  the  number  of  cases,  where  the  doing  away  with  the 
$500  limitation  will  increase  largely  the  number  of  cases.  It  is  a 
question  whether  the  taking  away  of  that  limitation  is  not  mixed 
with  evil,  because  it  has  been  suggested  to  me  that  taking  it  away 
is  entirely  for  the  benefit  of  the  poor  man,  because  the  rich  man 
can  take  up  the  cases  where  the  poor  man  has  succeeded  in  the 
lower  courts,  and  litigate  him,  out  of  spite  and  malice,  and  make 
him  a  large  expense,  making  his  recovery  barren  in  the  end  by  the 
extra  expense  of  carrying  the  case  to  the  Court  of  Appeals.  We  all 
know  that  litigants  are  naturally  very  pugnacious,  and,  if  they  have 
the  means  or  can  borrqw  the  money  or  give  the  necessary  bonds, 
you  know  how  disposed  they  are  to  fight  where  there  is  any  chance 
for  fight.  So  I  take  it,  with  the  increase  of  population  and  the 
growing  business  of  this  State,  that  the  Court  of  Appeals,  instead 
of  having  their  business  lessened,  will,  probably,  have  it  increased. 
Therefore,  there  may  be,  at  least,  an  urgent  necessity  for  some  sort 
of  relief.  If  this  amendment  of  the  Judiciary  Committee,  abrogat- 
ing this  provision  as  to  the  Second  Division  of  the  Court  of  Appeals 
is  carried,  and  it  is  wiped  out,  there  is  no  relief  whatever  for  the  next 
twenty  years,  unless  the  Legislature  sees  fit  to  propose  this  same 
amendment  or  something  similar  to  it  to  the  people  in  two  succes- 
sive Legislatures,  and  the  people  vote  for  it.  Let  me  call  your 
attention  here  to  the  amendment  in  this  Convention  already  pro- 
posed by  Mr.  Marshall,  requiring  that  any  amendment  that  is  car- 
ried by  the  people  shall  have  a  majority  of  all  the  votes  cast  for 
any  proposition.  If  that  amendment  goes  through  this  Convention 
and  is  adopted  by  the  people,  we  may  safely  prophesy  and  predict 
that  no  amendment  will  be  carried  by  the  people  in  the  next  twenty 
years  at  all.  So  you  are  putting  yourselves  in  this  situation,  that 
for  the  next  twenty  years  you  have  no  remedy  whatever  against 
multiplicity  of  cases  on  the  Court  of  Appeals  calendar.  I  think  it 
66 


1042  REVISED  RECORD.  [Tuesday, 

is  well  to  have  cast  an  anchor  to  windward;  have  a  provision  for 
a  second  court  that  you  may  resort  to,  if  the  need  arises,  and  not  to 
be  resorted  to  necessarily,  unless  the  occasion  demands  it. 

Therefore,  I  have  offered  this  amendment  to  test  the  sense  of 
this  committee  on  this  subject.  On  the  matter  of  economy  the 
judges  assigned  are  the  present  existing  judges;  no  expense  for 
them,  because  they  are  under  pay,  anyway.  The  only  additional 
expense  to  be  incurred  is  the  crier  of  the  court.  I  think  that  this 
is  a  matter  that  deserves  to  receive  the  serious  consideration  of  the 
delegates,  and  that  there  ought  to  be  some  such  provision,  this  or 
something  similar. 

Mr.  A.  H.  Green  —  Mr.  Chairman,  if  I  understand  this  amend- 
ment, it  is  a  proposition  to  insert  in  the  Constitution  a  provision  for 
a  Second  Division  of  the  Court  of  Appeals  to  be  appointed  from  the 
Supreme  Court  judges  by  the  Governor.  Now,  sir,  we  are  creating 
twelve  or  thirteen  new  judges  of  the  Supreme  Court  to  attend  to  the 
multiplicity  of  business  that  is  accumulating  upon  it.  We  propose 
to  take  them  out  of  the  Supreme  Court  and  put  them  into  the  Court 
of  Appeals.  I  have  very  great  respect  for  my  friend  from  Orange 
(Mr.  Dickey),  whose  propositions  I  have  generally  found  to  be  very 
sound;  but  I  have  observed  something  of  the  action  of  the  Second 
Division  of  the  Court  of  Appeals  as  heretofore  constituted,  and  I 
trust  that  this  State  will  never  be  subjected  to  any  such  a  calamity 
again.  I  suppose  that  if  we  are  to  have  an  additional  Court  of 
Appeals,  constituted  by  the  Supreme  Court,  the  argument  will  be 
that  their  salaries  should  be  increased,  if  new  duties  are  imposed. 
If  you  impose  new  duties,  you  must  increase  the  salary.  I  am 
utterly  opposed  to  that,  and  I  hope  that  no  amendment  of  this  kind 
will  be  adopted,  although  I  can  sympathize  entirely  with  my  friend 
here  in  the  wisdom  of  his  desire  to  make  some  provision  for  what 
may  occur  some  twenty  years  hence  or  less.  If  that  should  be 
so  great,  the  Legislature,  in  two  sessions,  can  put  through  a  consti- 
tutional amendment  that  will  provide  for  it. 

The  Chairman  put  the  question  on  the  adoption  of  Mr.  Dickey's 
amendment,  and  it  was  determined  by  a  rising  vote  in  the  affirm- 
ative, 58  to  54. 

Mr.  Doty  —  Mr.  Chairman,  I  desire  to  present  on  amendment  to 
the  amendment  which  has  just  been  adopted. 

The  Secretary  read  Mr.  Doty's  amendment  as  follows: 
Strike  out  the  words  "and  to  form  a  Second  Division  of  said 
court,"  and  insert  in  lieu  thereof   the  following:  "And   a    Second 
Division  of  said  Court  of  Appeals  shall  be  thereupon  formed,  and 


August  21.]  CONSTITUTIONAL  CONVENTION.  1043 

shall  be  composed  of  three  judges  of  the  Court  of  Appeals,  except 
the  chief  judge  and  four  of  such  additional  justices,  such  judges 
and  justices  all  to  be  selected  by  lot,  and  the  Court  of  Appeals  shall 
be  composed  of  the  chief  judge  and  the  remaining  judges  and  jus- 
tices, until  said  Second  Division  shall  be  dissolved  as  herein 
provided." 

Mr.  Root  —  Mr.  Chairman,  there  are  a  number  of  the  members 
of  the  Convention  in  the  hall  who  did  not  vote  upon  the  amendment 
of  Mr.  Dickey,  which  has  just  been  put  to  a  vote,  and  I  suppose 
I  exercise  the  right  of  any  member  in  the  case,  where  there  has 
not  been  a  roll-call,  in  moving  a  reconsideration. 

Mr.  W.  H.  Steele  —  Mr.  Chairman,  I  rise  to  a  point  of  order. 
A  vote  cannot  be  reconsidered  in  Committee  of  the  Whole. 

The  Chairman  —  The  point  of  order  is  not  well  taken. 

Mr.  Veeder  —  Mr.  Chairman,  what  is  the  proposition?  Another 
order  of  business  has  been  taken  up.  The  announcement  has  been 
made  and  we  have  read  another  section. 

Voices  —  It  is  the  same  section. 

Mr.  Veeder  —  Well,  we  have  gone  into  another  order  of  business. 

The  Chairman  —  Will  the  gentleman  please  state  what  other 
order  of  business? 

Mr.  Veeder  —  The  Secretary  has  begun  to  read  another  section. 

The  Chairman  —  No,  he  has  not.  Mr.  Root  moves  that  the  vote 
by  which  the  amendment  of  Mr.  Dickey  has  been  adopted  be 
reconsidered. 

Mr.  Veeder  —  Does  the  Chair  hold  that  no  business  has  inter- 
vened since  that  vote  has  been  announced?  Did  not  the  Clerk 
commence  to  read? 

The  Chairman  —  The  Chair  holds  that  Mr.  Doty  offered  another 
amendment  to  this  very  amendment  that  has  been  adopted. 

Mr.  Veeder  —  Then  has  not  business  intervened  in  the  committee 
since  the  announcement  of  the  result  of  that  vote? 

The  Chairman  —  Just  such  business  as  that  has  intervened. 

Mr.  Veeder  —  That  is  what  we  are  talking  about.  I  make  the 
point  of  order  that  the  motion  is  out  of  order. 

The  Chairman  —  The  point  of  order  is  not  well  taken. 

Mr.  Dickey  —  I  make  the  point  of  order  that  Mr.  Root  cannot 
make  this  motion,  as  he  did  not  vote  with  the  majority. 


1044  REVISED  RECORD.  [Tuesday, 

The  Chairman  —  If  that  is  true,  I  think  the  point  of  order  is  well 
taken. 

Mr.  Root  —  I  understand  that  does  not  apply,  except  in  the  case 
of  a  roll-call. 

Mr.  Dean  —  Mr.  Chairman,  that  rule  does  not  apply  in  reference 
to  proposed  constitutional  amendments,  under  the  rule. 

Mr.  Root  —  Mr.  Chairman,  I  feel  that  that  vote  was  taken  without 
the  discussion  and  consideration  which,  perhaps,  ought  to  have  been 
given  to  it.  I  should  feel  very  sorry  to  have  this  Convention  put 
upon  record,  on  the  face  of  this  judiciary  article,  which  the  Con- 
vention has  been  kind  enough,  or  many  members  of  the  Convention 
have  been  kind  enough,  to  express  approval  of  in  its  general  feat- 
ures, a  statement  that  the  Convention  has  no  confidence  in  the 
effectiveness  of  the  article  which  they  adopt.  I  think  there  can  be 
no  doubt  that  that  would  be  the  effect.  We  propose  to  the  people 
of  the  State  a  new  plan,  which  involves  the  creation  of  appellate  tri- 
bunals, larger  in  numbers,  requiring  much  greater  expenditures 
than  those  which  now  exist.  We  invite  the  people  of  the  State  to 
add  to  the  number  of  justices  of  the  Supreme  Court,  in  order  that 
we  may  withdraw  from  the  ordinary  trial  work  a  sufficient  number 
of  these  justices  to  constitute  these  new  tribunals.  We  invite  the 
people  of  the  State  to  this  large  expense.  We  propose  to  them  a 
plan  for  limitations  on  the  appeals  to  the  Court  of  Appeals,  and  upon 
the  jurisdiction 

Mr.  Veeder  —  I  rise  to  a  point  of  order.  There  is  no  motion 
that  is  debatable  before  the  House,  if  the  Chair  has  held  that  the 
motion  to  reconsider  is  in  order. 

The  Chairman  —  The  point  of  order  is  not  well  taken. 

Mr.  Veeder  —  Is  the  motion  to  reconsider  held  in  order? 

The  Chairman  —  It  is. 

Mr.  Veeder — Is  that  debatable? 

The  Chairman  —  The  Chair  so  holds. 

Mr.  Root  —  And  at  the  same  time,  Mr.  Chairman,  we  propose 
to  say  to  the  people  of  the  State  that  we  do  not  think  that  all  this 
new  machinery  and  this  added  expense  are  going  to  be  of  any  avail, 
and  that,  notwithstanding  it  all,  we  find  it  necessary  to  retain  an 
expedient,  a  make-shift,  which  involves  the  accumulation  of  a 
great  number  of  cases  upon  the  calendar  of  the  Court  of  Appeals, 
with  all  the  delay  and  the  injustice  involved  in  the  accumulation 
of  those  cases,  and  that  only  after  that  delay  and  injustice  shall 
relief  be  given.  I  do  not  believe,  Mr.  Chairman,  that  there  is  any 


August  21.]  CONSTITUTIONAL  CONVENTION.  1045 

occasion  for  any  such  expedient  as  this.  I  believe  that  the  system 
which  is  proposed  here  will  be  adequate  to  produce  the  result  of 
enabling  the  Court  of  Appeals,  whether  it  be  nine  or  whether  it  be 
seven,  to  keep  faith  with  the  demands  upon  it  on  its  calendar;  and 
I  am  opposed,  Mr.  Chairman,  first,  to  our  saying  to  the  people  of 
the  State  that  we  do  not  believe  in  our  work,  when  we  do;  I  am 
opposed,  second,  to  our  offering  to  the  Court  of  Appeals  an  invita- 
tion, not  to  keep  up  with  their  calendar  and  do  the  work  that  comes 
to  them.  Let  us  put  this  judiciary  article  in  such  shape  that  the 
court  will  have  their  work  set  out  before  them,  and  let  us  leave 
it  to  them  to  do  or  not,  and,  if  they  cannot  do  it,  then  let  the  court 
take  the  consequence  of  whatever  relief  the  people  may  see  fit  to 
seek.  The  remedy  is  not  in  constituting  a  sporadic  and  occasional 
tribunal  of  this  kind  to  repress  evil  already  .done.  It  is  to  perfect 
the  system,  if  we  have  not  perfected  it,  so  that  the  work  can  be  done ; 
and,  still  more,  Mr.  Chairman,  I  am  opposed  to  keeping  in  the  Con- 
stitution a  provision  which  every  now  and  then,  if  it  is  worth  any- 
thing, will  break  up  the  ordinary  administration  of  the  law  in  the 
Supreme  Court  of  the  State,  and  take  from  the  State,  from  their 
ordinary  duties,  a  great  array  of  the  justices  of  the  Supreme  Court, 
leaving  the  people  who  want  their  services  without  judges  to  do 
their  work.  I  know  the  last  Second  Division  was  the  occasion  of 
great  inconvenience,  and  annoyance,  and  loss,  and  dissatisfaction 
among  the  bar  and  suitors  all  over  the  State,  because  their  judges 
were  taken  away  and  sent  up  into  the  Second  Division  at  Albany. 
Either  we  do  not  want  these  judges  in  the  Supreme  Court  or  we 
want  them  there,  and  we  want  to  keep  them  there,  and  any  system 
which  provides  for  putting  a  lot  of  justices  in  the  Supreme  Court, 
that  may  just  as  well  be  spared  to  be  put  into  a  Court  of  Appeals, 
any  system  which  provides  a  Court  of  Appeals  which  needs  to  have 
justices  of  the  Supreme  Court  taken  away  to  supplement  its  work 
is  an  ineffective  system.  I  believe  in  the  system,  and,  therefore,  I 
am  against  this  proposition,  and  I  hope  the  Convention  will  recon- 
sider it  and  vote  it  down. 

Mr.  Lester  —  Mr.  Chairman,  I  would  like,  with  the  indulgence  of 
the  Chair,  to  ask  a  question  of  the  gentleman  who  has  just  taken 
his  seat  (Mr.  Root),  and  that  is,  what  reply  can  be  made  to  the  sug- 
gestion of  the  gentleman  from  Rensselaer  (Mr.  Parmenter),  that  the 
removal  of  the  $500  limit  and  the  permission  which  is  contained  in 
the  present  proposed  amendments  for  appeals  from  cases  arising  in 
justices'  courts,  that  these  two  things  combined  will  bring  a  greater 
number  of  causes  to  the  Court  of  Appeals  than  the  restriction  which 
the  article  contains  will  keep  out  of  the  Court  of  Appeals,  and  that, 


1046  REVISED  RECORD.  [Tuesday, 

therefore,  the  result  of  this  amendment,  instead  of  being  to  diminish 
the  causes  which  come  to  the  Court  of  Appeals,  will,  in  fact, 
increase  the  number  of  causes,  and  thus  increase  the  labors  of  the 
court,  and  thus  make  it  still  more  difficult  for  the  Court  of  Appeals 
to  dispatch  its  business. 

Mr.  Root  —  My  answer  is  that,  in  my  judgment,  the  doing  away 
of  the  limit  will  not  materially  increase  the  number  of  appeals  that 
go  to  the  Court  of  Appeals.  I  further  believe  that  we  do  not  take 
away  by  this  constitutional  provision  any  prohibition  or  prevent  any 
prohibition  upon  appeals  from  justices'  courts  going  to  the  Court 
of  Appeals.  We  leave  to  the  Legislature  the  power  to  continue 
the  limitation  preventing  appeals  from  justices'  courts  going  to  the 
Court  of  Appeals.  Any  case  that  is  brought  in  the  Supreme  Court 
can  go  there,  but  the  Legislature  may  continue,  and  may  increase, 
if  they  please,  the  limitation  preventing  appeals  from  inferior  courts 
going  there,  and  making  the  court  of  last  resort  for  these  inferior 
courts  the  substitute  for  the  Court  of  Common  Pleas  and  the 
Superior  Court  of  Buffalo  and  the  County  Courts  as  they  are  now. 

Mr.  Powell  —  Mr.  Chairman,  owing  to  the  logical  turn  of  mind 
of  the  gentleman  from  New  York  (Mr.  Root),  who  has  just 
addressed  the  Convention,  I  cannot  help  thinking  that  under  the 
surface  of  his  serious  face,  while  he  made  the  address,  there  must 
have  been  a  smile  which  was  not  visible  to  his  auditors.  The  line 
of  argument  is  this,  that  if  we  place  in  the  Constitution  the  amend- 
ment which  we  have  substantially  adopted  by  the  vote  of  a  moment 
ago,  that  it  in  itself  is  an  intimation  to  the  electors  of  the  State  who 
are  to  pass  upon  our  work,  that  we,  ourselves,  have  no  faith  in  the 
judiciary  amendment  which  we  shall  probably  adopt.  Now,  I  can 
conceive  of  myself  for  a  moment,  as  the  captain  of  an  ocean  steamer, 
and  of  the  gentleman  from  New  York  (Mr.  Root),  as  the  president 
of  the  navigation  company  which  employs  me,  and,  as  I  am  about 
to  start  out  of  the  port  of  New  York  for  Liverpool,  he  comes  down 
to  the  steamer  which  I  command,  and,  seeing  the  lifeboats  on  board, 
at  once  says:  "Throw  them  overboard  just  as  quickly  as  you  can." 
"Why  throw  the  lifeboats  overboard?"  "Why,"  he  answers  me 
at  once,  "  if  you  do  not  throw  them  overboard,  they  will  be  con- 
sidered as  an  intimation  to  all  the  passengers  on  the  steamer  that 
the  company  has  no  faith  in  the  steamer  itself,  and  that  we  expect  it 
to  sink  somewheres  in  mid-ocean."  We  all  know  what  the  answer 
of  the  sensible  man  to  a  proposition  of  that  kind  would  be.  We 
should  say  it  is  no  intimation  of  anything  of  the  kind.  We  have 
absolute  faith  in  the  steamer.  We  expect  it  to  go  across  the  ocean, 
and  reach  the  other  side  in  safety,  but  still  we  carry  the  lifeboat  so 


August  21.]  CONSTITUTIONAL  CONVENTION.  1047 

that  if  anything  should  go  wrong  on  the  way,  we  shall  have  some- 
thing to  provide  for  us  in  that  case  of  emergency.  Is  not  that 
exactly  the  situation  of  this  proposed  amendment,  as  relating  to 
the  amendment  which  was  offered  by  Mr.  Dickey  and  which  was 
adopted  a  few  moments  ago?  It  is  no  intimation  that  we  have  any 
lack  of  faith  in  the  judiciary  article.  It  is  something  which  was 
adopted  by  the  people  not  many  years  ago,  as  Mr.  Dickey  has 
already  said,  and  we  must  all  admit  that  with  this  new  judiciary 
article  we  shall  go  out  upon  untried  ground,  not  absolutely  knowing 
whether  the  work  of  the  Court  of  Appeals  is  to  be  increased  or  is  to 
be  diminished,  and  there  is  nothing  mandatory  in  this  amendment 
of  Mr.  Dickey.  It  is  simply  something  to  provide  for  an  emer- 
gency, if  that  emergency  should,  by  any  possibility,  arise.  It  is  a 
provision  for  such  an  emergency,  which  has  the  sanction  of  a  popu- 
lar vote,  and  I,  for  one,  cannot  see  the  slightest  harm  that  will  arise 
from  our  placing  it  in  the  judiciary  article.  I  certainly  hope,  for 
these  reasons,  that  we  shall  not  reconsider  our  vote,  and  I  hope 
also  that  this  Convention  will  have  sufficient  respect  for  its  own 
dignity  and  its  own  action  not  to  reconsider  a  vote  simply  because 
some  one  who  is  opposed  to  the  proposition  sits  quietly  in  his  seat 
until  he  is  defeated,  and  then  asks  us  to  reconsider  the  matter  that 
his  speech  may  be  delivered  which  should  have  been  delivered 
before  the  vote  was  taken,  when  every  member  had  an  opportunity 
to  voice  his  sentiment  upon  the  matter  at  issue  before  the  Conven- 
tion. I  hope  we  shall  vote  not  to  reconsider  the  vote  taken  not 
more  than  five  minutes  ago. 

Mr.  Dean  —  Mr.  Chairman,  I  simply  want  to  ask  a  question 
whether  we  are  justified  in  introducing  something  into  the  Consti- 
tution which  is  ill-considered  and  ill-advised,  simply  because  some- 
body has  failed  to  make  a  speech  here?  It  seems  to  me  entirely 
proper,  if  there  is  any  question  here  to  be  discussed,  that  this  Con- 
vention should  reconsider  its  action,  and  give  us  an  opportunity 
for  having  a  hearing  upon  it. 

Mr.  C.  B.  McLaughlin  —  Mr.  Chairman,  I  regret  exceedingly  that 
I  feel  it  my  duty  to  oppose  this  amendment.  I  was  heartily  in  favor 
of  this  article  as  reported  by  the  Judiciary  Committee.  The  whole 
system  incorporated  in  that  article,  with,  possibly,  one  slight  excep- 
tion, met  with  my  hearty  approval.  But  no  sooner  was  that  article 
presented  upon  the  floor  of  this  Convention  than  one  member  of 
that  committee  saw  fit  to  attack  it,  and  moved  to  reduce  the  number 
of  judges  which  the  committee  had  reported  unanimously,  with 
one  exception,  to  seven.  Now,  I  regret  that  I  am  forced  to  dis- 
agree with  the  chairman  of  this  committee.  I  do  not  believe  that 


1048  REVISED  RECORD.  [Tuesday, 

seven  judges  on  the  Court  of  Appeals  can  do  the  work  in  that  court. 
I  do  not  believe  it,  because  I  judge  that  it  will  do  in  the  future  just 
what  it  has  done  in  the  past.  I  do  not  agree  with  him  that  the  pro- 
visions of  this  article  will  lessen  the  number  of  appeals  to  that  court. 
But,  if  they  do,  the  committee  has  provided  in  this  article  for  a 
large  increase  of  the  justices  of  the  Supreme  Court.  Now,  it  seems 
to  me  that  it  is  a  wise  provision,  inasmuch  as  there  is  a  difference 
of  opinion  as  to  whether  or  not  seven  judges  in  that  court  can  do 
the  work;  that  out  of  this  increase  of  justices  in  the  Supreme  Court 
some  provision  be  inserted  by  which  a  Second  Division  can  be 
organized  as  a  part  of  the  Court  of  Appeals,  if  necessary.  I  sin- 
cerely hope  that  there  will  be  some  provision  put  into  this  article 
which  will  afford  some  relief,  if  relief  is  needed.  Now,  if  the  article 
had  left  the  nine  judges,  there  would  have  been  two  additional 
judges,  which  would  have  increased  the  working  power  of  that 
court,  at  least,  to  seven,  comparing  it  with  the  work  it  is  now 
doing,  and,  I  say  it  with  all  due  respect  to  the  gentlemen  who 
opposed  this  amendment.  It  seems  to  me  the  height  of  folly,  in 
the  light  of  the  experience  of  the  past,  that  we  should  adopt  an 
article  here  and  leave  the  Court  of  Appeals  in  exactly  the  condition 
in  which  it  is  now. 

Mr.  Moore  —  Mr.  Chairman,  it  seems  to  me  that  if  there  is  any- 
thing which  proves  that  our  position  in  favoring  nine  judges  of  the 
Court  of  Appeals  was  a  correct  one,  it  is  the  immediate  introduction 
of  some  amendment  as  this,  by  the  gentleman  from  Orange 
(Mr.  Dickey),  and  its  apparent  adoption  by  this  committee.  I  dis- 
like very  much  to  differ  from  my  learned  colleague  and  friend, 
Judge  McLaughlin,  of  Essex  county,  about  this  amendment,  but  I 
know  he  is  wrong  about  it.  The  people  do  not  want  another  bar- 
nacle like  the  Second  Division  of  the  Court  of  Appeals  fastened  on 
them.  No  man  whom  I  ever  heard  of,  or  who  ever  consulted  me, 
if  he  wanted  to  go  to  the  Court  of  Appeals,  but  wanted  his  case 
disposed  of  by  the  First  Division.  For  some  reason  or  other  the 
Second  Division  of  the  Court  of  Appeals,  composed  of  good  lawyers 
and  eminent  men,  simply,  perhaps,  because  it  was  called  the  Second 
Division,  was  not  regarded  by  the  people,  by  the  litigants,  by  the 
suitors,  with  the  same  respect  which  the  First  Division  was.  What- 
ever the  reason  may  have  been,  nevertheless,  the  fact  stands. 
I  certainly  hope  that  this  committee  will  reconsider  this  unfortunate 
vote  by  which  this  Second  Division  is  about  to  be  fastened  upon  us 
again.  I  think  the  gentlemen  here  who  have  stated  that  this 
judiciary  article  can  be  carried  out  equally  as  well  with  seven  judges 
as  with  nine,  must  now  see  their  blunder  in  attempting  any  such 


August  21.]  CONSTITUTIONAL  CONVENTION.  1049 

thing.  I  admit  nothing  when  I  know  I  am  right.  Make  your 
admissions  and  your  compromises,  but  get  your  judgment  first  and 
make  your  admissions  and  compromises  afterwards,  if  you  want  to. 
I  believe  this  Judiciary  Committee  was  right  for  the  interests  of 
the  people  when  they  proposed  the  two  additional  judges.  I  cer- 
tainly shall  vote  against  the  amendment  offered  by  Mr.  Dickey. 

Mr.  Veeder  —  Mr.  Chairman,  I  am  opposed  to  the  motion  to 
reconsider,  on  the  ground  that  it  is  entirely  out  of  order.  There  is 
no  right  of  appeal  from  a  decision  of  the  Chair  in  Committee  of  the 
Whole.  I  advise  the  delegates  here  to  read  rule  48,  which  says  a 
motion  to  reconsider  a  proposition  of  this  kind  must  be  made  by  a 
person  who  voted  with  the  majority,  and  it  is  only  on  a  motion 
to  reconsider  a  vote  on  the  final  passage  of  a  proposed  constitutional 
amendment  that  any  member  is  privileged  to  make  the  motion. 
Now,  there  is  no  way  by  which  we  can  correct  the  Chair,  except  to 
vote  this  down  for  that  reason.  If  we  submit  to  one  error,  it  may  be 
an  inducement  to  some  one  else  to  rule  improperly. 

The  Chairman  —  The  Chair  desires  to  state  to  the  gentleman  from 
Kings  (Mr.  Veeder)  that  he  is  liable  to  error  in  parliamentary  law, 
and,  possibly,  has  erred,  but  he  has  for  his  authority  this  statement, 
among  others,  which  he  considers  very  good:  "When  no  division 
of  the  House  takes  place,  all  the  members  are  deemed  to  have  voted 
with  the  majority." 

Mr.  Veeder  —  What  does  the  Chair  read  from? 

The  Chairman  —  From  Cushing's  Manual. 

Mr.  Veeder  —  Mr.  Gushing  is  overruled  by  our  rules. 

The  Chairman  —  If  Mr.  Veeder  will  wait,  he  will  get  down  to 
our  rules.  "  When  no  division  of  the  House  takes  place,  all  the 
members  present  are  deemed  to  have  voted  with  the  majority,  and 
may  accordingly  move  a  reconsideration." 

Mr.  Veeder  —  May  I  ask  the  Chair  if  he  means  to  say  that  a 
count  is  no  division? 

The  Chairman  —  Rule  25  provides,  referring  to  the  Committee 
of  the  Whole,  which  the  Chair  took  as  his  guide:  "The  same  rules 
shall  be  observed  in  the  Committee  of  the  Whole  as  in  the  Conven- 
tion, so  far  as  the  same  are  applicable,  except  that  the  previous 
question  shall  not  be  applied,  nor  the  yeas  and  nays  be  taken,  nor  a 
limit  be  made  as  to  the  number  of  times  speaking."  Applying  the 
same  rules  of  interpretation  to  that  rule  that  we  ordinarily  apply- 
when  exceptions  are  made,  it  leaves  all  other  motions  open  to  the 
Convention.  Now,  upon  the  other  proposition  in  which  the  gentle- 


I050  REVISED  RECORD.  [Tuesday, 

man  made  an  objection  to  the  rulings  of  the  Chair,  the  Chair  has 
this  authority.  He  reads  now  from  Roberts  on  Rules,  and  Mr.  Reed 
on  Rules. 

Mr.  Veeder  —  That  is  the  gentleman  from  Washington.  He  has 
been  overruled.  (Applause.) 

The  Chairman  —  That  may  be,  but  the  Chair  thinks  he  has  been 
very  well  sustained  also.  (Applause.)  "  When  the  motion  that  is 
reconsidered  is  debatable,  the  motion  to  reconsider  opens  the  whole 
subject  for  debate."  That  is  as  good  authority  as  the  Chair  is  able 
to  find  in  the  short  time  he  has  had  to  examine  it. 

Mr.  Veeder  —  Do  I  understand  the  Chair  to  hold  that  the  same 
rules  apply  in  Committee  of  the  Whole  as  in  the  Convention? 

The  Chairman  —  That  is  what  the  rules  say,  with  the  two 
exceptions. 

Mr.  Veeder  —  Then  I  appeal  from  the  decision  of  the  Chair. 

Mr.  Choate  —  I  move  to  lay  the  appeal  on  the  table. 

The  Chairman  put  the  question  on  the  motion  of  Mr.  Choate  to 
lay  the  appeal  on  the  table,  and  it  was  determined  in  the  affirmative. 

The  Chairman  —  The  question  now  occurs  upon  the  motion  to 
reconsider  the  vote  by  which  the  amendment  offered  by  Mr.  Dickey 
was  adopted. 

Mr.  Dickey  —  Mr.  Chairman,  I  hope  that  this  motion  will  not 
prevail.  Now,  who  voted  for  this  amendment  who  has  said  he 
wants  to  vote  otherwise?  The  only  two  gentlemen  who  have 
spoken  on  the  subject,  voted  against  the  amendment.  No  sugges- 
tion is  made  that  there  would  be  any  change  of  the  vote  from  the 
vote  taken,  provided  there  was  a  reconsideration.  Nothing  has  been 
said  to  warrant  a  reconsideration,  except  the  suggestion  of  the  leader 
of  this  House,  that  a  vote  was  taken  without  sufficient  discussion. 
If  it  was  not  discussed,  it  was  the  fault  of  that  gentleman,  and  those 
who  think  with  him,  and  it  was  under  the  notion  that  the  article, 
as  reported,  would  be  approved  without  a  dissenting  vote,  or  with- 
out any  change,  and  there  was  nothing  to  warrant  that,  because 
there  was  the  suggestion  of  a  good  amendment  that  did  carry  a 
majority  of  this  committee.  As  the  gentleman  has  suggested  that 
the  passage  of  this  amendment  would  be  an  invitation  to  the  Court 
of  Appeals  to  neglect  their  work,  an  invitation  not  to  do  their  work, 
I  would  say  that  I  interpret  it  quite  to  the  contrary.  It  is  an 
intimation  and  a  warning  to  the  Court  of  Appeals,  the  regular 
court,  to  do  their  work  and  to  do  it  quickly,  so  that  there  might  be 
no  need  of  calling  to  their  aid  a  Second  Division  in  that  way,  to 


August  21.]  CONSTITUTIONAL  CONVENTION.  1051 

advertise  and  to  indicate  to  the  community  that  their  work  was  so 
far  behind  as  to  need  the  calling  of  other  judges  to  their  assistance. 
So  I  think  that  this  amendment  would  have  just  the  contrary  effect 
to  that  intimated  by  the  gentleman  who  spoke  upon  this  question. 
The  Second  Division,  when  it  sat  before,  was  made  up  of  good 
judges,  who  did  their  work  well,  who  relieved  the  calendar  and 
enabled  the  work  to  catch  up,  so  that  the  suitors,  as  was  their  right, 
had  the  chance  to  have  their  cases  tried  and  disposed  of  speedily. 
They  should  have  that  opportunity  again,  and  neither  of  the  gentle- 
men who  have  spoken  has  suggested  any  relief  in  case  of  such  an 
emergency,  if  the  calendar  would  clog  up.  It  is  184  cases  in  arrears 
to-day  already,  and  promises  to  be  more  in  arrears  every  month  it 
goes  on  from  now,  when  the  new  calendar  is  made  up,  and  to 
increase  its  volume  from  month  to  month  until  this  very  emergency 
I  am  trying  to  provide  for  will,  probably,  occur  inside  of  six  months, 
or  inside  of  a  year's  time  at  the  most.  None  of  these  gentlemen 
state  any  remedy  whatever,  but  they  leave  the  suitors  in  this  State, 
the  masses  of  the  people,  without  any  relief  whatever,  to  wait  for 
two  or  three  years  before  their  cases  can  be  heard  and  decided, 
where  there  are  claimants  who  have  judgments  against  corpora- 
tions, and  other  people,  so  that  they  cannot  realize  until  that  lapse 
of  time,  which  is  a  bad  thing  in  itself.  It  is  an  invitation  and  an 
encouragement  to  appeal  cases  for  the  sake  of  delay,  and  delay  only, 
knowing  that  they  will  be  beaten  in  the  end,  but  they  will  keep  the 
plaintiff  out  of  his  money,  and  that  is  some  satisfaction  and  a  good 
deal  of  satisfaction  to  some  people.  While  I  think  the  point  of 
order  that  was  made  was  a  good  one,  and  there  is  no  right  to 
reconsider,  personally,  I  do  not  mean  to  press  it.  I  am  quite  willing 
the  vote  should  be  taken  again,  because,  if  the  majority  of  this 
committee  do  not  desire  the  passage  of  this  amendment  that  the 
people  indorsed  so  recently  by  their  votes,  I  am  quite  content  they 
shall  say  so  here  and  now,  and  vote  it  down.  I  feel  I  have  done  my 
duty,  and  my  full  duty,  in  presenting  it  to  you,  and  indorsing  it,  as 
I  have. 

Mr.  Countryman  —  Mr.  Chairman,  without  reference  to  the 
merits  of  the  proposed  amendment,  I  submit  that  this  motion  to 
reconsider  should  be  sustained  and  adopted.  Doubtless,  it  passed 
in  the  present  shape,  because  it  was  the  general  impression  that  it 
would  not  be  adopted  by  the  Convention,  but,  if  there  is  to  be  any 
provision  made  in  the  Constitution,  as  amended,  for  a  Second 
Division  of  the  Court  of  Appeals,  it  should  receive  careful  considera- 
tion, and  there  are  amendments  which  could  be  made  to  this  pro- 
posed amendment,  which  would,  I  submit,  facilitate  it  for  practical 


1052  REVISED  RECORD.  [Tuesday, 

service  and  use.  To  illustrate,  this  proposed  amendment  requires 
in  the  emergency  that  the  Court  of  Appeals  is  overburdened  with 
work,  that  seven  judges  shall  be  taken  from  the  Supreme  Court  to 
relieve  the  court  of  last  resort.  Now,  what  is  the  effect  of  such  a 
proposition  as  that?  We  can  judge  of  it  by  experience.  In 
attempting  to  relieve  the  court  of  last  resort  you  are  obstructing 
the  proceedings  of  the  Supreme  Court,  the  court  of  original  juris- 
diction. Now,  if  there  is  to  be  a  Second  Division,  as  it  was  sug- 
gested and  considered  in  committee  when  this  question  was  before 
the  committee,  amendments  can  be  proposed  to  the  proposed 
amendment  which  will  relieve  it  of  that  objection.  Therefore,  I 
submit  that  even  those  who  are  in  favor  of  the  provision  for  a 
Second  Division  of  the  Court  of  Appeals  should  vote  for  the  recon- 
sideration of  this  question,  in  order  that  the  whole  matter  may 
come  before  the  Convention  on  its  merits. 

Mr.  Veeder  —  Mr.  Chairman,  I  did  not  understand  from  what 
Mr.  Dickey  said,  that  when  Mr.  Root  moved  for  a  reconsideration, 
it  was  because  this  matter  had  not  been  discussed  and  that  Mr.  Root 
desired  a  reconsideration  so  that  it  might  be  discussed.  I  under- 
stand that  Mr.  Root  asked  what  he  had  a  right  to  demand,  that 
upon  a  matter  of  this  importance  he  should  have  the  full  vote  of 
the  Committee  of  the  Whole.  He  stated  that  there  were  many 
members  of  the  committee  who  did  not  participate  in  the  vote,  and 
he  wanted,  if  the  scheme  proposed  by  the  Judiciary  Committee  was 
torn  to  pieces  and  condemned,  as  some  one  suggests,  that  it  should 
be  done  by  a  majority  vote  of  those  who  are  present  and  could  vote, 
but  for  some  reason,  happening  at  that  particular  moment,  had 
failed  to  vote.  Now,  this  matter  will  not  end  here  in  this  Com- 
mittee of  the  Whole.  Gentlemen  who  talk  as  if  the  action  here  was 
the  end  of  this  amendment,  was  the  end  of  consideration  of  this 
amendment,  are  mistaken.  When  this  matter  shall  have  been 
reported  to  the  Convention,  a  motion  may  then  be  made  to  refer  to 
the  committee,  with  instructions  to  amend  in  any  particular. 

Mr.  Dickey  —  Mr.  Chairman,  I  would  like  to  ask  the  gentleman 
a  question,  if  he  will  permit.  Did  not  the  gentleman  in  this  place 
on  the  floor,  on  the  question  of  Mr.  Becker's  amendment,  raise  the 
point  of  order  that  the  vote  then  was  final,  and  that  ended  it,  and 
there  was  nothing  to  do  then  but  carry  out  the  corpse? 

Mr.  Vedder  —  No,  I  am  sorry  the  gentleman  did  not  under- 
stand me  better,  and  does  not  understand  parliamentary  law  and 
usages  better.  A  delegate  in  the  Committee  of  the  Whole  moved 
that  the  committee  rise,  report  progress  on  the  bill,  and  ask  leave 


August  21.]  CONSTITUTIONAL  CONVENTION.  1053 

to  sit  again,  and  the  report  from  the  Committee  of  the  Whole  to 
the  Convention  was  that  the  committee  had  made  some  progress 
in  the  bill,  and  they  asked  leave  to  sit  again,  and  the  Convention 
refused  leave  to  sit  again,  and  without  looking  at  this 
boggled-up  rule,  or  knowing  anything  about  it,  I  asked  the 
Chair  to  rule,  which  had  been  the  law  for  a  thousand  years,  and  in 
every  parliamentary  body,  that  when  request  to  sit  again  is  refused, 
it  is  the  end  of  the  proposition;  and  the  President,  with  the  instinct 
of  a  parliamentarian,  without  remembering  the  rule  itself  adopted 
by  this  Convention  (applause),  ruled  that  the  bill  was  dead,  and 
such  is  the  law  and  the  rule  to-day  reported  by  the  Committee  on 
Rules  and  adopted  by  the  Convention,  with  the  voice  of  the  gentle- 
man from  Orange  (Mr.  Dickey),  in  its  favor.  (Applause.)  That  is 
the  point.  The  gentleman  from  Orange  may  know  that  when  this 
report  is  made,  whatever  it  may  be,  to  the  Convention,  that  if 
any  amendments  have  been  adopted  that  any  of  the  Convention 
desires  to  change  and  get  the  sentiment  of  the  Convention  upon 
that,  he  may  make  the  motion  to  refer  it  to  the  standing  committee, 
with  instructions  to  amend  in  this  or  in  that  particular,  and  to 
report  immediately  or  at  some  future  time 

Mr.  Veeder  —  Will  the  gentleman  allow  me  to  ask  him  a 
question? 

Mr.  Vedder  —  Certainly. 

Mr.  Veeder  —  Do  you  consider  the  motion  of  Mr.  Root  in  order 
at  this  time?  (Laughter.) 

Mr.  Vedder  —  A  great  philosopher  said,  that  whatever  is  is  right, 
and  I  would  say  in  answer  to  the  gentleman  that  the  Chair  has  so 
ruled.  (Applause  and  laughter.)  Without  going  into  the  merits 
of  the  amendment,  because  we  have  probably  had  discussion 
enough,  and  each  member  probably  knows  more  about  it  than 
any  other  member,  I  simply  hope  that  the  amendment  will  not  be 
adopted,  and  this  splendid  scheme  of  the  Judiciary  Committee 
destroyed,  as  it  would  be  thereby. 

Mr.  I.  S.  Johnson  —  Mr.  Chairman,  I  hope  this  resolution  will 
prevail,  that  this  matter  will  be  reconsidered,  that  it  may  be  voted 
upon  by  all  of  the  members  of  this  committee,  and  then  I  hope  that 
the  committee  will  succeed  in  defeating  it.  I  believe  that  the  people 
of  this  State,  when  they  have  a  Court  of  Appeals,  want  a  full-grown 
Court  of  Appeals.  They  want  a  Court  of  Appeals  that  are  elected 
as  such.  While  the  Second  Division  of  the  Court  of  Appeals  was 
composed  of  some  of  the  best  judges  in  this  State,  who  would  have 
graced  the  position  of  judges  of  the  Court  of  Appeals,  as  has  been 


1054  REVISED  RECORD.  [Tuesday, 

suggested  upon  this  floor,  their  decisions  did  not  have  the  respect 
of  the  other  division  of  the  Court  of  Appeals,  simply  because  they 
were  not  elected  members  of  the  Court  of  Appeals.  This  matter 
has  been  before  two  bodies,  at  least,  for  its  consideration.  It  was 
before  the  commission,  and  after  long  consideration,  if  I  am  rightly 
informed,  they  came  to  the  conclusion  to  leave  out  the  Second 
Division  of  the  Court  of  Appeals.  It  came  back  from  that  com- 
mission to  the  Legislature,  and  the  Chairman  well  knows  that 
during  the  entire  winter,  almost  the  entire  session,  the  question 
was  discussed  by  some  of  the  ablest  lawyers  in  the  State,  and  the 
result  of  that  discussion  and  of  the  hearing  was  an  almost  unanimous 
decision  by  the  Judiciary  Committee  of  both  branches  of  the  Legis- 
lature, that  we  did  not  want  any  more  Second  Divisions,  that,  if 
we  were  to  have  more  members  of  the  Court  of  Appeals,  they 
should  be  members  that  were  elected  directly  to  the  Court  of 
Appeals.  That  was  the  decision  of  the  Judiciary  Committee  in 
the  Assembly  and  in  the  Senate,  and  I  believe  that  it  is  the  desire 
of  the  people  to  have  the  judges  of  any  of  their  courts  elected 
directly  to  that  court. 

Mr.  Blake  —  Mr.  Chairman,  I  do  not  arise  at  this  late  hour  to 
discuss  the  merits  of  this  proposition.  I  think  the  question  has 
had  sufficient  discussion,  in  fact,  more  than  sufficient,  but  I  wish  to 
call  the  attention  of  the  gentlemen  of  the  Convention  to  a  fact  which 
is  not  beyond  the  memory  of  all  of  us,  because  we  have  not  yet  closed 
our  eyes  in  slumber  since  the  very  chairman  of  the  Judiciary  Com- 
mittee, in  a  forcible  and  eloquent  address,  contended  for  an  increase 
in  the  number  of  judges  of  the  Court  of  Appeals,  because  seven 
judges  were  not  competent  or  sufficient  to  discharge  the  work  that 
might  come  to  that  court.  Otherwise  he  would  not  have  been 
justified  in  saddling  the  expense  of  two  additional  judges  upon  the 
State,  if  he  did  not  believe  that  nine  judges  were  necessary  for  that 
work.  And,  again,  he  tells  us,  within  two  or  three  hours  after 
that  statement,  that  seven  judges  are  sufficient  for  the  discharge 
of  this  work,  and  opposes  a  simple  provision  for  an  emergency, 
if  such  should  arise,  and  such  a  contingency  may  never  arise,  and 
the  people  may  possibly  not  be  put  to  any  expense.  I  say,  where 
is  the  consistency  in  that  position?  Not  three  hours  ago,  as  I  said 
before,  contending  that  an  increase  was  necessary,  otherwise  he 
would  not  have  justified  the  expense,  and  now  seven  judges  may 
do  the  work  and  he  opposes  a  Second  Division  that  may  never  be 
called  upon  to  do  any  work.  It  is  said  that  consistency  is  a  jewel, 
Mr.  Chairman,  and  I  point  to  this  fact,  which  is  a  glaring  case  of 


August  21.]  CONSTITUTIONAL  CONVENTION.  1055 

inconsistency.     I  trust,  Mr.  Chairman,  that  this  vote  will  not  be 
reconsidered. 

Mr.  Lauterbach  —  Mr.  Chairman,  I  voted  for  the  amendment  of 
Mr.  Dickey,  and  I  am  in  favor  of  its  reconsideration.  And  for  this 
reason  I  voted  for  that  amendment,  because  I  considered  it  a  neces- 
sary consequence  of  what  I  believe  to  have  been  the  unfortunate 
result  of  substituting  the  number  seven  for  the  number  nine,  in  the 
committee's  report,  and  I  am  in  favor  of  reconsidering  the  vote  by 
which  a  Second  Division  is  intended  to  be  created,  or  its  possibility 
made  easy,  in  the  hope  that  the  sound,  sober,  second  sense  of  the 
Convention,  when  the  section  itself  comes  to  be  discussed  in  this 
Convention,  will  cause  it  to  retract  the  proposition  which  it  has 
enunciated  this  evening  upon  the  suggestion  of  a  member  of  the 
committee  which  originally  proposed  that  the  work  of  the  Court 
of  Appeals  should  be  performed  by  an  adequate  number  of  the 
judges  of  the  Court  of  Appeals.  If  you  are  going  to  give  us  an 
inadequate  number  of  judges,  then  you  must  give  us  a  Second 
Division  of  the  Court  of  Appeals.  But,  if  you  will  give  us  an  ade- 
quate number  to  perform  the  burden  that  you  are  going  to  put 
upon  the  shoulders  of  that  court,  then  you  need  no  Second  Division 
of  the  Court  of  Appeals;  you  need  no  first-rate  court  as  a  first 
division  and  a  second-rate  court  as  a  second  division.  In  hope 
that  the  change  will  be  effected  that  I  suggest,  I  trust  that  the 
motion  for  a  reconsideration  may  be  carried,  and  that  we  may 
remedy  the  evil  which  we  have  brought  about,  by  insisting  that  the 
work  of  the  committee  shall  be  reversed,  and  that  we  shall  have 
seven  judges  to  perform  a  service  that  nine  judges  will  be  incapable 
of  performing.  I  will  speak  upon  the  subject  for  one  moment. 
While  in  the  session  of  this  Convention,  at  the  suggestion  of  more 
than  a  hundred  lawyers  in  the  city  of  New  York,  I  introduced  an 
amendment,  No.  33  of  the  amendments,  that  were  submitted,  which 
provided  for  the  election  of  ten  judges  to  the  Court  of  Appeals, 
and  for  a  provision  exactly  similar  to  that  which  was  submitted 
by  the  Convention,  that  seven  judges  should  constitute  a  quorum, 
and  that  there  should  be  three  judges  at  hand  to  supply  deficiencies. 
We  take  men  of  mature  age  to  perform  that  service.  It  is  proper 
that  it  should  be  done,  and  one  or  two  or  three  are  apt  to  be  incapac- 
itated. When  I  went  to  the  Court  of  Appeals  last,  in  the  month 
of  July,  I  found  Judge  Andrews  in  Europe  and  another  judge 
suffering  and  almost  unable  to  sit  on  the  bench,  and  we  had  a 
small,  sparse,  scant  bench  before  which  to  discuss  most  important 
questions.  I  found  a  court  that  had  been  obliged,  by  reason  of 
its  inability  to  keep  pace  with  its  business,  to  order  that  fifteen 


1056  REVISED  RECORD.  [Tuesday, 

minutes  should  be  devoted  to  the  discussion  of  appeals  from 
special  proceedings,  the  most  important  matters  that  can  be  brought 
to  the  attention  of  the  court,  a  special  proceeding  in  which  the 
charters  of  corporations  should  be  criticised  and  the  constitution- 
ality of  the  provisions  which  went  to  make  them  up  should  be 
considered.  And  yet,  so  meagre  is  the  time  at  the  disposal  of  that 
court  that  they  have  been  obliged  for  years,  in  that  important 
character  of  proceedings,  to  order  that  only  fifteen  minutes  should 
be  devoted  to  their  consideration.  Would  they  do  this  if  they  had 
time  properly  to  devote  to  the  business?  No;  but  you  put  too 
much  burden  upon  them  and  they  cannot  do  better,  and  the  per- 
functory argument  takes  place,  and  it  is  unsatisfactory  to  them, 
unsatisfactory  to  counsel,  and  very  often  unsatisfactory  in  results, 
because  of  the  limitation  of  time  which  is  so  unjustly  put  upon  the 
rights  of  counsel  to  make  full  arguments.  When  this  matter  comes 
again  into  Convention,  I  hope  those  things  will  be  considered.  It 
cannot  be  answered  that  you  put  limitations  in  the  balance  of  this 
proposed  amendment,  that  is  going  to  render  the  business  of  less 
volume  than  it  has  been.  You  have  swept  away  the  $500  limitation. 
Enormous  appeals  that  have  never  gone  before  to  the  Court  of 
Appeals  will  now  go  there,  and  must  be  decided  with  the  same 
decorum,  the  same  consideration,  the  same  deliberations  that  has 
characterized  the  appeals  of  every  character.  You  have  swept  away 
a  few  appeals  of  non-enumerated  orders,  a  few  appeals  from  inter- 
locutory orders,  but  those  cases  amount  to  nothing;  they  have 
never  vexed  the  court ;  they  have  never  absorbed  the  time,  and  you 
have,  in  no  respect,  reduced  the  volume  of  business.  As  our  popu- 
lation increases,  the  volume  of  business  will  necessarily  become 
greater.  I  trust  much  more  may  be  said  upon  this  subject.  I  trust 
that  the  sudden  flush  of  excitement  which  caused  you,  acting  under 
the  leadership  of  a  member  of  the  committee,  to  subvert  and  turn 
over  and  revolutionize  all  the  work  which  we  have  so  highly  com- 
mended here  for  its  symmetry  and  its  perfection,  and  leave  this 
important  detail,  the  hinge  upon  which  the  whole  subject  turns ;  that 
you  may  again  do  justice  to  the  committee,  not  give  them  idle 
panegyrics,  such  as  we  have  heard  this  afternoon,  but  to  say  that  we 
recognize  that  you  have  formed  a  new  system,  and  under  the  sys- 
tem you  have  made  it  evident  that  more  judges  are  needed  in  the 
Court  of  Appeals,  and  not  for  the  purpose  of  having  a  first  division 
and  a  second  division,  and  not  with  a  view  of  having:  some 
reserved  judges,  but  with  a  view  that  the  judges  may  not  be  broken 
down  by  the  tremendous  burdens  put  upon  them,  but  that  some 
of  them  may  rest,  and  that  we  will  constitute  an  adequate  court. 


August  21.]  CONSTITUTIONAL  CONVENTION.  1057 

I  believe  that  the  final  result  will  be,  not  a  Second  Division,  which 
no  one  respects,  but  a  full  court,  fully  armed,  fully  equipped,  ready 
to  perform  the  service  which  is  to  be  put  upon  them,  consisting  of 
nine  members. 

Vice-President  Alvord  took  the  chair,  and  announced  that  the  hour 
of  ten  o'clock  having  arrived,  the  Convention  stood  adjourned  until 
to-morrow  at  ten  o'clock. 


Wednesday  Morning,  August  22,   1894. 

The  Constitutional  Convention  of  the  State  of 'New  York  met  in 
the  Assembly  Chamber,  at  the  Capitol,  Albany,  N.  Y.,  August 
22,  1894. 

President  Choate  called  the  Convention  to  order  at  ten  o'clock. 
The  Rev.  Paul  Birdsall  offered  prayer. 

On  motion  of  Mr.  O'Brien,  the  reading  of  the  Journal  of  yester- 
day was  dispensed  with. 

The  President  —  Mr.  Goodelle  asks  to  be  excused  on  Friday  and 
Saturday  of  this  week  on  account  of  important  family  interests  and 
for  the  performance  of  public  duties. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Goodelle,  and  it  was  determined  in  the  affirmative. 

The  President  —  Mr.  Lauterbach  also  desires  to  be  excused  for 
to-day  only. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Lauterbach,  and  it  was  determined  in  the  affirmative. 

Mr.  Durfee  —  Mr.  President,  to  enable  me  to  fill  an  appoint- 
ment which  was  made  prior  to  the  rule  providing  for  Saturday  and 
Monday  sessions,  I  ask  leave  of  absence  from  Friday  morning  until 
Monday  morning.  I  feel  more  free  because  I  was  fortunately  able 
to  be  present  on  the  two  days  last  week  for  which  the  Convention 
kindly  excused  me. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Durfee,  and  it  was  determined  in  the  affirmative. 

Mr.  Williams  —  Mr.  President,  owing  to  the  illness  in  the  family 
of  Mr.  Burr,  he  asks  that  he  be  excused  until  they  may  recover. 
I  understand  his  daughter  is  quite  ill. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Burr,  and  it  was  determined  in  the  affirmative. 

67 


1058  REVISED  RECORD.  [Wednesday, 

The  President  —  Petitions  and  memorials  are  in  order.  Notices, 
motions  and  resolutions. 

Mr.  Kellogg  offered  the  following  resolution: 

R.  181. —  Resolved,  That  the  Comptroller  is  respectfully 
requested  to  furnish  the  Convention  at  once  with  a  list  of  the 
exempt  property  in  the  State  called  for  by  the  Convention  some 
time  since,  so  far  as  the  same  is  now  completed  by  him. 

The  President  —  That  will  be  referred  to  the  Committee  on  State 
Finances  and  Taxation. 

A  communication  from  the  Superintendent  of  Banking  will  be 
read. 

The  Secretary  read  the  communication  as  follows  (No.  24,  Docu- 
ment No.  61,  in  response  to  resolution  No.  158): 

To  the  Secretary  of  the  Constitutional  Convention  of  the  State  of  New 

York: 

In  accordance  with  your  request  of  the  3d  inst,  I  send  you  here- 
with a  printed  statement  of  the  trust  companies  of  this  State  as  com- 
piled from  their  reports  to  this  department  for  the  year  ending 
June  30,  1894. 

Very  truly  yours, 

CHAS.  M.  PRESTON, 

Superintendent  of  Banking. 

The  President  —  What  shall  be  done  with  the  statistics 
referred  to? 

Mr.  I.  S.  Johnson  —  I  move  that  they  be  printed. 
The  President  put  the  question  on  the  motion  of  Mr.  Johnson, 
and  it  was  determined  in  the  affirmative. 

The  President  —  There  will  be  no  further  call  for  reports  of 
committees.  The  Convention  will  proceed  in  Committee  of  the 
Whole  on  the  judiciary  article. 

Mr.  Gilbert  —  Mr.  President,  I  desire  to  present  a  report  from 
the  Committee  on  ^Industrial  Interests. 

The  Secretary  read  the  report  as  follows: 

Mr.  Gilbert,  from  the  Committee  on  Industrial  Interests,  to 
which  was  referred  the  proposed  constitutional  amendment,  intro- 
duced by  Mr.  Kellogg  (introductory  No.  52),  entitled,  "  Proposed 
constitutional  amendment  to  amend  the  Constitution,  relative  to  the 
liability  of  employers  for  injuries  to  employes,"  and  also  one  intro- 
duced by  Mr.  Coleman  (introductory  No.  130),  entitled,  "A  pro- 


August  22.]  CONSTITUTIONAL  CONVENTION.  1059 

posed  constitutional  amendment  to  amend  the  Constitution, 
concerning  action  for  damages  for  negligence,"  reports  in  favor  of 
the  passage  of  the  same,  with  some  amendments,  which  report  was 
agreed  to  and  said  amendments  committed  to  the  Committee  of 
the  Whole. 

Mr.  Gilbert,  from  the  Committee  on  Industrial  Interests,  to 
which  was  referred  the  proposed  constitutional  amendment,  intro- 
duced by  Mr.  Springweiler  (introductory  No.  58),  entitled,  "  Pro- 
posed constitutional  amendment  to  amend  section  6  of  article  i  of 
the  Constitution,  relating  to  conspiracy,"  reports  in  favor  of  the 
adoption  of  a  substitute  for  the  same,  which  report  was  agreed  to 
and  said  amendment  committed  to  the  Committee  of  the  Whole. 

Mr.  Gilbert,  from  the  Committee  on  Industrial  Interests,  to 
which  was  referred  the  proposed  constitutional  amendment,  intro- 
duced by  Mr.  Tucker  (introductory  No.  315),  entitled,  "  Proposed 
constitutional  amendment  to  amend  article  i  of  the  Constitution, 
by  adding  a  new  section  thereto,  relating  to  a  lawful  day's  work 
and  the  employment  of  women  and  minors,  and  to  unsanitary  labor 
in  tenement  houses,"  reports  adversely  thereto. 

The  President  put  the  question  on  agreeing  with  the  adverse 
report  of  the  committee,  and  it  was  determined  in  the  affirmative. 

Mr.  Barrow  —  Mr.  President,  I  understand  the  judiciary  article 
has  been  made  a  special  order  in  this  Convention  until  its  comple- 
tion. There  was  a  special  order  set  down  for  this  morning  in 
which  I  am  interested,  and,  in  view  of  the  situation  in  regard  to 
the  judiciary  article,  I  would  move  that  this  special  order  be 
deferred  until  the  conclusion  of  the  consideration  of  the  judiciary 
article,  and  that  it  be  then  taken  up. 

The  President  put  the  question  on  the  motion  of  Mr.  Barrow, 
and  it  was  determined  in  the  affirmative. 

Mr.  Mulqueen  —  Mr.  President,  to  may  great  regret  I  will  be 
unable  to  attend  on  Saturday,  and  I  would  like  to  be  excused. 

The  President  put  the  question  on  granting  leave  of  absence  to 
Mr.  Mulqueen,  and  it  was  determined  in  the  affirmative. 

Mr.  Davies,  from  the  Committee  on  Railroads,  to  which  was 
referred  the  proposed  constitutional  amendment,  introduced  by 
Mr.  Cornwell  (introductory  No.  363),  entitled,  "  Proposed  constitu- 
tional amendment,  to  prevent  discrimination  in  rates  or  charges, 
either  by  railroad,  telegraph  or  telephone  companies,  corporations 
or  common  carriers  doing  business  within  the  boundaries  of  the 
State,"  reports  in  favor  of  the  passage  of  the  same,  with  some 


1060  REVISED  RECORD.  [Wednesday, 

amendments,  and  requests  that  the  proposed  amendment,  as 
amended,  be  printed,  several  members  of  the  committee  dissenting 
from  the  report,  which  report  was  agreed  to,  the  said  amendment 
ordered  printed  and  referred  to  the  Committee  of  the  Whole. 

The  President  —  If  Mr.  Acker  will  please  take  the  chair,  the  Con- 
vention will  proceed  in  Committee  of  the  Whole  with  the  judiciary 
article. 

Mr.  Acker  took  the  chair  and  announced  that  the  Convention 
was  in  Committee  of  the  Whole  on  general  order  No.  45  (O.,  I. 
No.  383,  P.  No.  422),  and  that  the  pending  question  was  the  con- 
sideration of  section  7. 

Mr.  C.  B.  McLaughlin  —  Mr.  Chairman,  when  we  adjourned 
last  night  Mr.  Lauterbach,  of  New  York,  had  just  finished  speaking. 
I  voted  in  favor  of  Mr.  Dickey's  amendment  that  there  should  be 
incorporated  in  this  article  substantially  the  provision  which  is  now 
in  the  present  Constitution.  I  did  so  because  I  felt  and  because  I 
appreciated  the  fact  that  there  is  a  demand  on  the  part  of  the 
people  of  this  State  that  some  relief  should  be  given  to  the  Court 
of  Appeals.  I  am  not  in  favor  of  a  Second  Division  of  the  Court  of 
Appeals,  as  contemplated  in  this  amendment.  I  do  not  believe 
that  that  is  satisfactory  to  the  bar  of  this  State  or  to  the 
litigants  of  this  State.  I  do  feel  that  there  should  be  some 
provision  incorporated  in  the  article  as  proposed  to  this  Con- 
vention, and  which  I  hope  we  will  finally  submit  to  the  people 
of  this  State,  some  provision  looking  to  haste  through  the 
final  court  of  this  State.  It  was  for  that  reason  that  I  supported 
and  urged  upon  this  Convention  the  importance  of  adopting  this 
article,  as  reported  by  the  committee.  It  seemed  to  me,  as  I 
stated  upon  the  floor  of  this  House  yesterday,  the  height  of  folly  to 
go  before  the  people  of  this  State  with  a  constitutional  amendment 
leaving  the  Court  of  Appeals  as  it  is  now.  Now,  I  propose  to 
support  the  proposition  made  by  Mr.  Root  to  reconsider  this  vote 
and  shall,  at  a  proper  time,  move  to  reconsider  the  vote  which  was 
taken  yesterday  striking  out  the  nine  judges  and  making  it  seven, 
and  for  my  own  information  I  would  like  to  inquire  of  the  Chair 
if  it  would  be  proper  to  make  such  a  motion  to-day? 

The  Chairman  —  It  would. 

Mr.  McLaughlin  —  It  would.  Now,  I  sincerely  hope  that  the 
Convention  will  reconsider  that  vote  which  was  taken  last  night 
and  adopted  Mr.  Dickey's  amendment.  I  believe  it  would  be 
unwise  to  go  before  the  people  of  this  State  with  a  proposed  con- 
stitutional amendment  leaving  the  judiciary  article  substantially  as  it 


August  22.]  CONSTITUTIONAL  CONVENTION.  1061 

is  now.  Why,  even  now,  for  the  purpose  of  relieving  the  Court  of 
Appeals,  we  could  have  a  Second  Division.  We  have  tried  it,  but 
it  was  not  satisfactory.  The  lawyers  did  not  want  to  argue  their 
cases  in  that  division,  and,  as  I  said  a  moment  ago,  in  order  to 
have  some  relief  in  that  court,  I  hope  the  amendment  will  be 
allowed  to  stand. 

Mr.  Choate  —  Mr.  Chairman,  I  earnestly  hope  that  the  motion 
made  by  Mr.  Root  for  the  reconsideration  of  the  vote  upon 
Mr.  Dickey's  amendment  will  be  sustained,  and  generally  sustained. 
It  was  hastily  taken.  The  aggregate  vote  on  both  sides  did  not 
nearly  represent  all  the  gentlemen  that  were  in  the  chamber  at  the 
time.  The  views  of  the  committee  had  not  been  sufficiently  pre- 
sented and  considered,  and  I  think  they  are  entitled,  on  such  an 
amendment  as  that,  to  infinite  weight.  Upon  the  other  question 
that  was  presented  we  were  asked  to  solve  a  doubt  upon  which 
they  were  evenly  divided,  as  to  the  number  of  the  court.  Not  so 
in  respect  to  this  matter,  which,  I  understand,  is  their  unanimous 
conviction.  I  hope  there  will  be  no  hesitation  in  reconsidering  the 
vote  on  Mr.  Dickey's  amendment. 

Mr.  Dickey  —  Mr.  Chairman,  I  have  little  hope  of  succeeding 
in  opposing  this  motion,  opposed,  as  I  am,  not  only  by  the 
leader  of  the  Convention,  but  by  its  honored  President.  But  I 
take  the  floor  to  say  what  I  neglected  to  say  in  the  debate  last 
night  and  should  have  said,  that  this  provision  providing  that 
in  case  the  emergency  should  arise,  that  the  Second  Division  of 
the  Court  of  Appeals  should  be  called  into  being  can  only  be  effec- 
tive when  the  Court  of  Appeals  themselves  certify  to  the  Governor 
the  necessity  for  such  a  Second  Division.  This  Second  Division 
could  be  called  into  being,  if  the  emergency  arose.  If  the  emer- 
gency would  never  arise,  they  would  never  be  called  upon  to  act. 
As  has  been  argued  here  time  and  time  again,  wherever  there  is 
any  question  of  doubt  the  Constitution  should  be  left  as  it  is, 
rather  than  that  a  change  should  be  made  in  it.  The  provision 
that  I  am  contending  for  is  a  provision  already  in  the  Constitu- 
tion, and  the  action  of  the  Judiciary  Committee  is  to  take  out  some- 
thing already  in.  My  amendment  is  merely  to  leave  in  what  we 
have  already  recently  voted  for,  and  those  who  believe  that  there 
may  possibly  be  a  need  of  this  Second  Division  should  vote  as  they 
did  last  night,  against  reconsideration  and  for  this  amendment. 

The  Chairman  —  The  question  is  on  the  motion  of  Mr.  Root  to 
reconsider  the  vote  by  which  Mr.  Dickey's  amendment  was 
adopted. 


1062  REVISED  RECORD.  [Wednesday, 

Mr.  McKinstry  —  Mr.  Chairman,  I  would  like  to  say  just  a 
word  or  two.  For  one  particular  reason,  I  was  very  glad  that 
Mr.  Dickey's  amendment  was  adopted,  and  I  should  like  to  see  it 
stay  in.  You  have  voted  to  increase  the  Supreme  Court  judges  very 
largely.  It  has  been  a  serious  question  with  many  delegates  as  to 
how  that  would  be  received  by  the  people.  It  seems  to  me  that 
this  provision  should  be  adopted  as  an  emergency  and  to  support  or 
justify  that  increase  in  the  Supreme  Court  judges.  It  would  go 
far  to  justify  us  in  the  minds  of  the  people  in  making  that  increase. 
I  have  heard  many  lawyers  say  the  increase  was  unnecessary,  and 
I  doubt  the  wisdom  of  the  committee  in  recommending  it.  I  do 
not  see  how  this  amendment  condemns  the  excellent  judiciary  arti- 
cle. To  my  mind,  the  strong  part  of  the  judiciary  article  is  the 
provision  strengthening  the  General  Term.  That  is  the  strong 
part  of  that  article.  I  think  the  people  will  welcome  it.  I  know  a 
great  many  lawyers  have  considered  it  simply  a  stopping  place 
to  the  Court  of  Appeals.  I  think  they  have  often  got  extra  copies 
of  the  evidence  printed,  because  they  simply  expected  to  go  to  the 
Court  of  Appeals.  That  part  of  the  report  is  very  strong,  and  I 
don't  think  Mr.  Dickey's  amendment  interferes  with  it. 

Mr.  A.  H.  Green  —  Mr.  Chairman,  I  have  the  greatest  respect 
for  anything  that  comes  from  my  friend  from  Orange  (Mr.  Dickey), 
but  I  am  sorry  to  say  that  I  cannot  agree  with  him  on  this  occa- 
sion. If  I  am  to  judge  of  the  future  from  the  past,  I  should  regard 
the  amendment  that  he  proposes,  imposing  a  Second  Division 
upon  the  Court  of  Appeals,  as  nothing  short  of  a  public  calamity, 
and  I  hope  the  motion  to  reconsider  will  prevail. 

The  Chairman  —  The  question  is  on  reconsidering  the  vote  by 
which  the  amendment  of  Mr.  Dickey  was  adopted. 

Mr.  Dickey  —  I  ask  for  a  rising  vote. 

A  rising  vote  was  had  and  the  motion  to  reconsider  was  deter- 
mined in  the  affirmative  by  a  vote  of  93  to  39. 

The  Chairman  —  The  question  now  arises  on  the  motion  of  the 
gentleman  from  Orange  (Mr.  Dickey)  to  amend  section  7. 

Mr.  Dickey  —  I  call  for  a  rising  vote  on  that. 

A  rising  vote  was  had,  and  the  motion  of  Mr.  Dickey  to  amend 
section  7  was  lost  by  a  vote  of  43  to  71. 

Mr.  C.  B.  McLaughlin  —  Mr.  Chairman,  I  now  move  to  recon- 
sider the  vote  which  was  taken  yesterday  striking  out  of  section  7 
the  nine  judges  and  restoring  it  to  seven,  and  ask  that  that  motion, 
for  the  present,  be  laid  upon  the  table. 


August  22.]  CONSTITUTIONAL  CONVENTION.  1063 

Mr.  Veeder  —  Mr.  Chairman,  I  make  the  same  point  of  order 
that  I  made  last  evening,  that  a  motion  to  reconsider  is  out  of  order 
in  Committee  of  the  Whole,  and  I  call  your  attention  to  rule  48  on 
page  1 02  of  the  Manual. 

The  Chairman  —  The  point  of  order  is  well  taken. 

Mr.  Veeder  —  I  am  very  much  obliged  to  the  Chair. 

Mr.  Hotchkiss  —  Mr.  Chairman,  I  want  to  inquire  whether  it  is 
in  order  to  lay  a  motion  to  reconsider  upon  the  table  in  Committee 
of  the  Whole? 

The  Chairman  —  The  Chair  holds  that  it  is  not.  If  it  was,  we 
would  not  know  where  we  were  an  hour  from  now. 

Mr.  Veeder  —  I  desire  to  keep  the  Chair  straight,  but,  neverthe- 
less, I  wish  to  remind  the  Chair  that  he  is  ruling  both  ways. 

The  Chairman  —  The  Chair  is  obliged  for  the  reminder. 

Mr.  C.  B.  McLaughlin  —  Do  I  understand  the  Chair  to  rule  that 
it  could  not  be  laid  upon  the  table? 

The  Chairman  —  Yes,  sir. 

Mr.  McLaughlin  —  Then  I  do  now  move  that  we  reconsider  that 
vote. 

The  Chairman  —  Whose  amendment  was  that? 

Mr.  McLaughlin  —  Mr.  Brown's  amendment. 

The  Chairman  —  Mr.  McLaughlin  moves  to  reconsider  the  vote 
by  which  Mr.  Brown's  amendment  was  adopted. 

Mr.  C.  B.  McLaughlin  —  Mr.  Chairman,  as  I  stated  yesterday, 
I  was  prepared,  and  am  now  prepared,  to  support  the  provisions  of 
this  article,  as  it  came  from  the  committee.  There  are  minor  things 
in  it  which  do  not  please  me,  but,  as  to  the  whole  of  that  bill,  I 
believe  it  is  the  very  best  which  can  be  got  through  this  body. 
The  fact  is  that  a  committee,  composed  of  the  ability  and  intelli- 
gence of  the  individual  members  who  are  upon  this  committee, 
have  for  weeks  been  at  work,  and  have  finally  given  us  this  propo- 
sition, which  is  satisfactory  to  the  bar  of  this  State,  with  a  very 
few  exceptions,  and  which  is  satisfactory  to  the  whole  press  of  the 
State,  with  very  few  exceptions.  Now,  it  seems  to  me  the  height 
of  folly  for  any  individual  member  of  this  body,  simply  because 
he  believes  that  this  bill  will  be  made  better  by  the  striking  out  of 
some  little  minor  things  to  ruin  the  whole  scheme  of  it.  I  want 
to  see  this  bill  adopted,  as  it  is  reported.  I  am  prepared  to  support 
it  as  reported,  and  I  hope  that  this  body  will  restore  it  to  the  form  in 
which  it  came  from  the  committee.  If  that  committee  cannot 
perfect  an  article  and  report  it  to  this  body,  considering  the  time 


1064  REVISED  RECORD.  [Wednesday, 

which  it  has  had  to  consider  it,  I  do  not  believe  that  we  will, 
in  the  heat  of  discussion,  be  able,  hastily,  to  make  an  article  which 
will  be  satisfactory  to  the  people  of  this  State.  I  sincerely  hope, 
that  this  motion  will  be  reconsidered. 

Mr.  E.  R.  Brown  —  Mr.  Chairman,  I  regret  exceedingly  that  I 
should  be  called  upon  to  address  the  committee  again  this  morning 
upon  this  subject.  Although  my  remarks  were  not  as  extended 
as  those  of  some  of  the  other  gentlemen  yesterday,  still  I  feel  that 
I  have  taken  up  all  the  time  of  the  Convention  that  I  ought  to 
take.  But  I  must  call  attention  to  the  fact  that,  if  we  now 
proceed  to  reconsider  that  vote,  it  establishes  a  precedent,  and 
establishes  it  beyond  the  chance  of  overturning  it,  for  we  have  once 
before  this  pursued  the  same  course  of  overturning  the  deliberate 
vote  where  a  large  majority  of  the  Convention  showed  that  it  was 
in  favor  of  an  amendment  traversing  the  same  ground,  and  really 
affording  to  ourselves  and  to  the  people  of  the  State  a  spectacle 
of  incompetency.  I  regret  it  exceedingly  from  that  standpoint. 

But  I  desire  to  say  further  upon  this  matter  that  I  am  astonished 
that  the  suggestion  should  be  made  to  this  Convention  that  there 
is  not  a  "T"  to  be  crossed  nor  an  "I"  to  be  dotted  in  the  report 
of  this  committee.  I  respect  this  Judiciary  Committee.  I  respect 
the  scheme  which  they  submit  to  this  Convention.  We  were 
treated  yesterday  to  an  address  by  a  member  of  that  committee 
in  which  he  represented  its  members  or  caricatured  them  as  bottled 
up,  each  one  of  whom  had  a  lot  of  pet  measures,  any  one  of  which, 
if  it  came  out,  would  be  liable  to  turn  loose  all  the  others  and  set 
this  House  in  a  state  of  agitation.  I  believe  that  this  Convention, 
although  it  has  not  given  that  long  deliberation  and  the  careful 
study  to  the  judiciary  article  that  the  Judiciary  Committee  has 
given  may  still  have  ideas  upon  single  points  in  that  report,  which 
have  been  considered  by  them  for  years,  and  upon  which  their 
united  judgment  may  possibly  be  better,  in  the  matter  of  minor 
details,  than  that  of  the  committee. 

And,  Mr.  Chairman,  let  me  say  more  in  regard  to  this  matter.  It 
was  well  established  in  the  debate  that  this  question  of  the  number 
of  the  judges  in  the  Court  of  Appeals  had  shaken  that  committee  to 
its  very  center;  that  it  had  only  finally  been  carried  by  a  majority  of 
one,  and,  if  reports  be  true,  on  a  compromise  in  that  committee. 
And  yet,  after  it  has  gotten  into  the  report  in  that  way,  we  are 
treated  to  the  declaration  on  this  floor  that  if  the  majority  of  this 
Convention  agree  with  what  the  majority  of  that  committee  at  one 
time  favored,  we  are  upon  the  point  of  tearing  down  the  entire 
structure. 


August  22.]  CONSTITUTIONAL  CONVENTION.  1065 

Mr.  Chairman,  I  will  not  say  more  upon  this  subject  than  that 
I  beg  the  House  to  pass  upon  the  matter  now  and  finally,  one  way 
or  the  other,  so  that  the  people  of  the  State,  as  well  as  the  members 
of  the  Convention,  may  know  what  stand  the  Convention  will  take 
upon  this  subject;  and,  that  the  Convention  will  not  exhibit  itself 
to  the  State  as  an  incompetent  body. 

Mr.  Choate  —  Mr.  Chairman,  I  did  not  suppose  that,  in  becoming 
the  President  of  this  Convention,  I  was  sacrificing  my  individual 
right  as  a  delegate  to  think  and  vote  as  I  pleased.  It  has  been 
questioned,  however,  by  a  member  of  the  Judiciary  Committee. 
The  proposition  was  laid  down  that  because  I  had  appointed  a 
committee  I  was  bound  to  accept  the,  report  of  that  committee.  I 
dissent  from  that  doctrine.  I,  for  one,  protest  against  a  reconsid- 
eration of  this  important  question,  which  was  voted  upon  yesterday 
most  deliberately,  and  after  the  fullest  consideration  and  debate 
upon  both  sides.  It  is  a  point  not  in  the  least  vital  to  the  rest  of 
the  scheme  of  the  committee,  all  of  the  rest  of  which  I  propose  to 
sustain  to  the  best  of  my  ability.  Nothing  else  in  the  report  of  the 
committee  hangs  upon  it,  and  it  cannot  be  reasonably  claimed  that 
it  does.  The  question  of  a  vital  change  in  the  number  of  judges 
is  one  wholly  independent  of  anything  else  in  the  report;  and 
is  one  which  has  largely  exercised  members  of  the  bar  and  the 
community  at  large  for  many  years;  and  it  was  brought  to  a  full 
and  final  hearing  yesterday.  As  I  understood  it,  and  as  I  under- 
stand it  now,  after  all  the  revelations  which  were  made  from  the 
committee  yesterday,  it  was  not  considered  by  that  committee  as 
vital  to  anything  contained  in  the  rest  of  their  report.  It  was  not 
decided  until  everything  else  had  been  decided,  and  was  then 
adopted  merely  by  a  vote  sufficient  to  make  them  able  to  report 
upon  it  one  way  or  the  other.  They  represent  themselves  as  doubt- 
ful, and  as  evenly  divided  upon  it,  and  ask  us  to  solve  the  question. 
It  was  solved  after  a  most  earnest  debate,  after  everything  that 
could  be  said  in  its  favor  had  been  said,  and  after  everything  that 
I  supposed  could  be  said  against  it  had  been  said.  I  hope,  for  one, 
with  Mr.  Brown,  that  we  shall  not  make  an  exhibition  of  ourselves, 
after  a  vote  of  81  to  37  yesterday,  upon  a  proposition  like  this  —  a 
purely  independent  proposition  —  by  coming  in  the  next  morning 
and  reconsidering  it.  What  has  been  going  on  over  night?  That 
is  what  I  should  like  to  know.  (Laughter.) 

Mr.  McClure  —  Will  the  gentleman  allow  me  to  ask  a  question? 
I  would  like  to  ask  him,  through  the  Chair,  what  has  been  going 
on  over  night  that  warranted  the  change  in  the  vote  of  the  Conven- 
tion on  the  provision  for  a  Second  Division  of  the  Court  of  Appeals? 


1066  REVISED  RECORD.  [Wednesday, 

Mr.  Choate  —  That  is  a  wholly  different  matter.  That  was  a 
matter  which  passed  without  consideration  and  without  debate. 
This  is  not  at  all  so.  This  is  a  question  which  has  agitated  the 
community,  which  has  agitated  the  profession,  which  has  divided 
the  committee,  and  has  been  fully  discussed  and  then  voted  upon 
in  the  Convention.  Now,  do  not  let  us  make  an  exhibition  of  our- 
selves. If  we  wish  to  secure  for  our  work  the  confidence  of  the 
people,  do  not  let  us  show  ourselves  so  unable  to  make  up  our 
minds  upon  such  a  vital  matter  as  that.  I  stand  by  all  that  I  said 
yesterday.  I  think  reconsideration  would  be  a  serious  blow  to  the 
dignity,  to  the  character  and  to  the  efficiency  of  the  work  of  the 
courts.  I  hope  that  we  will  stand  by  our  vote. 

Mr.  C.  B.  McLaughlin  —  May  I  ask  the  gentleman  a  question? 
He  speaks  about  the  dignity  of  the  court.  I  would  like  to  ask  him 
if  he  thinks  it  is  necessary  that  the  number  of  judges  be  exactly 
seven  in  order  that  its  dignity  be  preserved? 

Mr.  Choate — 1  think  it  is  important,  in  a  court  of  last  resort, 
that  all  its  members  should  sit  upon  every  case.  As  I  consider  this 
proposition,  it  should  be  rather  entitled  as  one  to  give  larger  liberty 
of  holiday  to  the  Court  of  Appeals.  What  I  want  to  see  is  a  court 
always  one,  pronouncing  a  law  always  one  and  consistent,  not  vac- 
illating and  changing,  to-day  consisting  of  seven  particular  men, 
and  to-morrow  of  seven  particular  other  men. 

Mr.  Bowers  —  May  Task  the  gentleman  a  question?  Are  you 
not  aware  that  the  committee  intended  that  these  nine  judges  should 
constitute  one  court,  as  do  the  seven  at  present,  and  as  do  the  nine 
judges  of  the  Supreme  Court  of  the  United  States? 

Mr.  Choate  —  Yes;  but  I  have  heard  expressed  upon  the  floor 
how  they  propose  to  manage  it  —  that  seven  judges  only  should 
sit,  and  that  one  should  be  in  vacation,  and  one  writing  opinions. 
I  am  not  in  favor  of  that. 

Mr.  Smith  —  Mr.  Chairman,  the  people  of  this  State  are 
looking  to  the  Convention  for  consistency.  They  are  demanding 
of  us  a  judiciary  system  that  will  be  logical  and  consistent  and  that 
shall  possess  all  the  elements  of  common  sense.  Let  us  reflect  for 
a  moment  upon  the  condition  that  will  be  presented  by  limiting  the 
number  of  the  judges  of  the  Court  of  Appeals  to  seven,  and  making 
the  concurrence  of  four  a  decision.  We  have  agreed  that  five 
judges  shall  compose  the  Appellate  Division  of  the  Supreme  Court. 
Now,  let  us  take  a  case  and  look  at  it  in  the  light  that  the  people 
of  the  State  will  look  at  it.  A  man  in  New  York,  of  a  labor  organi- 
zation, believes  that  he  and  his  associates  in  the  great  struggle 


August  22.]          -CONSTITUTIONAL  CONVENTION.  1067 

between  labor  and  capital  have  a  right  to  combine  for  the  purposes 
of  protecting  the  interests  of  labor,  and  in  that  belief,  and  pursuant 
to  a  resolution  of  his  organization,  a  committee  is  appointed,  of 
which  he  is  a  member,  and  that  committee  is  instructed  to  do  certain 
things,  and  it  results  that  they  are  indicted  for  conspiracy;  they  are 
brought  to  trial,  are  tried  by  a  single  judge,  convicted  and  sentenced 
to  State's  prison  for  five  years  for  a  felony ;  an  appeal  is  taken  to  the 
Appellate  Division  of  the  Supreme  Court,  composed  of  five  judges, 
and  every  judge  votes  for  a  reversal,  holding  that  no  crime  has  been 
committed.  An  appeal  is  then  taken  by  the  people  to  the  Court  of 
Appeals,  and  in  that  court  three  judges  vote  to  sustain  the  five 
judges  of  the  Appellate  Division,  holding  that  no  crime  has  been 
committed.  But  four  judges  of  the  Court  of  Appeals  concur  in 
holding  that  a  crime  has  been  committed,  and  that  the  aforesaid 
labor  committee  has  been  properly  convicted  and  sentenced  to 
State's  prison.  What  would  the  people  of  the  State  say?  What  will 
the  masses  say  of  such  a  system,  in  which  four  judges  of  the  Court 
of  Appeals  virtually  rule  the  law  against  five  judges  in  the  Appel- 
late Division  and  three  judges  of  the  Court  of  Appeals?  We  must 
make  a  system  where  the  greater  number  of  judges  make  the  final 
rule  that  is  to  be  adopted  as  the  law  of  the  State;  and,  if  we  present 
to  the  people  of  this  State  a  system  with  this  want  of  common  sense 
and  of  common  logic,  it  never  will  be  approved  —  never,  never.  It 
has  been  said  here  that  judges  should  be  weighed  and  not  counted. 
That  is  a  rule,  Mr.  Chairman,  that  relates  to  witnesses,  and  where 
the  effort  is  to  impeach  some  of  a  numerous  body  of  witnesses,  or 
to  show  that  their  evidence  is  wholly  worthless.  I  never  have 
understood  that  judges  were  to  be  weighed;  they  are  to  be  counted, 
and  every  one  is  to  be  counted  as  having  some  common  sense  and 
some  knowledge  of  the  law,  and  not  to  stand  discredited  and  dis- 
honored. The  rule  is  not  applicable  here.  We  must  so  reorganize 
the  judiciary  system  of  this  State  that  it  shall  be  consistent,  that  it 
shall  be  logical,  that  it  shall  be  reasonable,  and  in  such  a  way  as  to 
command  the  approval,  not  only  of  the  lawyers,  but  of  the  masses 
of  the  people  who  will  be  affected  by  it.  Instead  of  having  seven 
judges,  we  should  certainly  have  nine,  with  six  for  a  quorum.  I 
hope  an  opportunity  will  be  presented  when  I  can  offer  an  amend- 
ment for  eleven,  keeping  the  court  a  one-headed  court,  a  consistent 
court,  a  court  than  can  transact  all  the  business  and  transact  it 
speedily,  and  yet  not  kill  a  single  judge  by  overwork. 

Mr.  Towns  —  Mr.  Chairman,  I  am  sorry  to  say  that  I  cannot 
agree  with  our  worthy  President,  Mr.  Choate,  in  my  unqualified 
support  of  this  article,  with  the  exception  of  the  amendment 


1068  REVISED  RECORD.  [Wednesday, 

increasing  the  Court  of  Appeals  judges  from  seven  to  nine.  I  think 
that  the  difficulty  with  this  entire  judiciary  article  is,  that  it  is  top- 
light  and  bottom-heavy.  It  was  said  by  the  learned  Judiciary  Com- 
mittee that  this  scheme  which  they  had  evolved  was  a  scheme 
beautiful  in  its  symmetry,  in  its  order,  and  in  its  harmony;  but  I 
can  see  nothing  in  it  but  disorganization,  anarchy  and  chaos,  in  the 
administration  of  the  judiciary  system  and  procedure  of  the  State. 
It  is  a  scheme  devised  to  beget  appeals,  to  fatten  jack-pots  of  law- 
yers, and  to  put  leaden  soles  upon  the  feet  of  justice,  in  their  weary 
march  up  to  the  Court  of  Appeals'  height.  It  will  be  more  like  the 
labor  of  the  gentleman  mentioned  in  mythology,  who  rolled  his 
burden  up  the  hill,  and  then  rolled  it  down  again,  in  order  that  he 
might  roll  it  up  again.  The  present  system  existing  in  this  State  is 
just  like  that.  The  length  of  time  that  it  takes  to  try  a  case  in 
France  at  the  present  day  will  be  lightning  speed  as  compared  with 
the  time  it  will  take  to  have  a  final  determination  upon  your  rights 
in  this  State,  if  you  have  an  increase  of  twelve  judges  upon  a  system 
and  number  of  judges  already  altogether  too  large.  I  do  not  agree 
with  what  gentlemen  have  said  in  this  chamber,  that  we  must  pre- 
pare for  an  increase  of  litigation  in  the  future;  I  have  said  here 
before,  and  say  again,  boldly,  that  litigation  in  this  State  is  upon 
the  decrease,  and  not  upon  an  increase.  Titles  have  been  settled, 
and  many  questions  have  been  put  to  rest  which  involved  litigation 
in  the  past,  but  which  will  never  create  litigation  in  the  future.  The 
time  of  the  courts  is  now  mostly  spent  in  actions  for  damages,  torts, 
and  actions  for  all  those  kinds  of  wrongs  for  which  the  clients  them- 
selves are  not  willing  to  pay,  but  which  the  ingenuity  and  scheming 
of  lawyers  bring  into  court.  Mr.  Chairman,  the  weakness  of  the 
system,  as  I  have  said  before,  is  anatomic,  and  not  at  the  bar.  We 
have  created  here  four  independent  Appellate  Divisions  in  this  State, 
numbering  five  judges  each  (and  in  one,  I  should  say,  that  there 
are  seven),  to  determine  appeals.  Now,  we  have  reduced  the  high 
Court  of  Appeals,  the  court  of  last  resort,  to  the  number  of  seven. 
Do  you  expect  litigants,  do  you  expect  lawyers  to  have  respect  and 
veneration  for  the  determinations  of  the  court  of  last  resort,  when 
seven  judges  in  New  York,  perhaps,  have  held  one  way  upon  a 
question,  and  the  Court  of  Appeals,  in  their  determination  of  the 
law,  and  in  the  opinion  which  they  deliver  themselves  of,  are  com- 
pelled to  hold  the  other  way?  What  does  the  layman,  what  does 
the  average  lawyer,  know  of  the  science  of  law  which  can  dis- 
tinguish fine  definitions  and  close  legal  distinctions?  Who  can 
draw  the  line  between  tweedle-dum  and  tweedle-dee,  as  between 
the  court  of  last  resort  and  the  Appellate  Division  of  the  First  Judi- 


August  22.]  CONSTITUTIONAL  CONVENTION.  1069 

cial  Department  of  this  State?  If  this  scheme  is  carried  out  to  its 
last  analysis  it  will  simply  beget  disrespect  and  contempt  for  the 
decisions  of  the  appellate  tribunal. 

Mr.  H.  A.  Clark  —  May  I  ask  the  gentleman  a  question?  Some 
of  the  delegates,  I  understand,  are  not  informed  as  to  the  meaning 
of  the  term  "  jack-pot"  Will  the  gentleman  explain  it? 

Mr.  Towns  —  You  evidently  have  never  arisen  to  the  occasion 
for  calling  one.  (Laughter.)  Mr.  Chairman,  for  the  information 
of  the  Convention  in  general,  I  will  say  that  a  jack-pot  involves 
very  much  the  same  game  that  the  game  of  law  involves  —  a  con- 
tinual "  bluff." 

Now,  Mr.  Chairman,  it  seems  to  me  that  the  tendency  of  all  mod- 
ern judiciary  procedure,  and  of  appellate  courts,  is  to  curtail  appeals 
to  one  appellate  court.  Everywhere,  and  in  every  country  where 
they  have  tried  an  intermediate  appellate  tribunal,  it  has  begotten 
dickering,  discontent  and  disrespect  for  the  system.  We  in  this 
State  could  have  one  scheme  for  appeals  with  much  more  expedi- 
ency and  with  much  better  results  than  we  could  have  by  this  scheme 
which  it  is  proposed  to  set  in  operation  in  this  State.  If  we  increase 
our  appellate  court  by  fifteen  members,  and  divide  them  by  five,  or 
by  three,  so  as  to  have  five  independent  appellate  courts  of  last 
resort,  or  three  independent  appellate  courts  of  last  resort,  deter- 
mining questions  which  may  come  before  them  finally  (except  such 
questions  as  may  be  certified  by  the  chief  justice,  or  by  five  members 
of  the  appellate  court),  we  would  then  have  one  homogeneous  and 
harmonious  system,  one  scheme  as  applied  to  the  whole  State,  and 
not  sub-divided  as  this  is,  for  the  purpose  of  begetting  appeals  and 
begetting  actions  that  would  never  end  and  would  never  cease.  I 
tell  you  that  the  people  of  the  State  of  New  York  will  not  stand  it 
to  be  robbed  of  five  hundred  thousand  dollars  for  the  purpose  of 
creating  unnecessary  courts  and  unnecessary  judges;  and  the  day 
of  reckoning  will  come  when  you  go  before  them  with  a  system 
which  is  not  modern,  but  which  belongs  to  past  ages. 

Mr.  Countryman  —  Mr.  Chairman,  the-  gentlemen  here  have 
spoken  about  the  necessity  of  a  larger  number  of  judges  in  the 
court  of  last  resort  in  order  to  command  the  respect  of  the  bar  and 
the  people  at  large.  Now,  sir,  there  is  no  country  in  the  world 
where  the  law  is  more  satisfactorily  administered  than  in  England, 
where  a  less  number  of  judges  than  we  have  proposed  in  this 
judiciary  article,  or  that  now  exists  in  this  State,  administer  the  law 
for  over  thirty  millions  of  people.  Not  only  that,  but  those  courts 
determine  in  a  last  resort  appeals  from  hundreds  of  millions  of 


1070  REVISED  RECORD.  [Wednesday, 

people  in  every  quarter  of  the  globe.  Now,  sir,  in  the  Court  of 
Appeals  division,  as  I  have  had  occasion  recently  to  examine,  rarely 
over  three  judges  sit  in  the  hearing  of  those  appeals  to  review  the 
decisions  of  the  various  divisions  below,  the  Chancery  Division, 
the  Queen's  Bench  and  other  divisions,  all  of  whom  are  composed 
of  a  larger  number  of  judges.  Very  often  only  two  members  sit  in 
that  court  to  determine  these  great  questions  of  law  and  equity,  and 
when  you  reach  the  House  of  Lords,  the  highest  court  in  the  king- 
dom, never  over  five  of  the  law  lords  take  part  in  the  decisions,  and 
very  frequently  only  three,  and  even  two,  as  no  particular  number 
in  those  courts  is  required  to  constitute  a  quorum  for  the  purpose 
of  hearing  appeals  or  carrying  on  business. 

Now,  sir,  it  is  a  notorious  fact  that  in  England  to-day,  although 
population  and  business  is  increasing,  litigation  is  decreasing,  so 
that  the  number  of  cases  that  come  before  the  courts  is  growing 
beautifully  less  every  year.  Does  not  that  fact  indicate  beyond  all 
controversy  that  the  number  of  judges  hearing  these  appeals  is  not 
necessary  to  command  respect?  But  it  is  the  fact  that  they  are  able 
and  distinguished  men  in  the  profession  before  they  take  their 
seats  on  the  bench,  and  that  they  always  recognize  the  settled 
rules  and  decisions  of  their  predecessors.  I  submit,  Mr.  Chair- 
man, that  seven  is  the  greatest  number  that  should  sit  in  any 
Court  of  Appeals  anywhere,  and  the  only  reason  why  the  number 
has  been  increased  to  nine  in  the  Supreme  Court  of  the  United 
States  is  that  there  is  so  large  an  extent  of  territory,  representing 
different  laws,  different  institutions  to  a  large  extent,  different 
analyses  of  legal  controversy  which  have  to  be  represented  in  that 
court,  because  in  large  numbers  of  cases  the  Supreme  Court  of  the 
United  States  is  governed  by  the  local  laws  and  not  by  the  general 
principles  of  law  as  settled  and  administered  in  that  tribunal.  That 
is  the  only  possible  excuse  for  having  nine  judges  in  that  court 
instead  of  seven,  and  is  the  only  reason,  as  I  understand  it,  why 
it  was  ever  increased  or  is  now  maintained  at  that  number. 

Mr.  Woodward  —  Mr.  Chairman,  I  wish  to  say  a  very  few  words 
on  this  subject.  I  do  not  believe  that  it  is  necessary  that  we  should 
increase  the  number  of  judges  of  the  Court  of  Appeals,  and  for  that 
reason  I  voted  for  seven  judges  and  I  voted  against  another  division 
of  the  Court  of  Appeals,  which  I  think  is  a  great  abomination,  or 
has  been,  in  the  experience  of  litigants,  lawyers,  and  the  people  gen- 
erally. It  has  been  said  that  the  number  of  judges  of  the  Court  of 
Appeals  should  be  larger  than  that  of  any  of  the  General  Terms,  for 
the  reason  that  they  are  to  pass  upon  decisions  of  General  Terms; 
that  one  General  Term  is  to  have  seven  judges  and  the  others  five. 


August  22.]  CONSTITUTIONAL  CONVENTION.  1071 

and  that  four  judges  of  the  Court  of  Appeals  may  reverse  one  of 
their  decisions.  Now,  I  maintain  that  the  Court  of  Appeals  is  in 
a  better  position  for  passing  upon  the  case  than  they  who  decided 
it  in  the  first  instance,  for,  in  the  first  place,  they  have  the  opinions 
of  the  judges  written  out  in  support  of  their  decision,  and  their 
opinions  to  look  over;  they  have  all-the  authorities  that  those  courts 
have  seen  fit  to  bring  to  sustain  their  decisions;  then,  in  addition  to 
that,  all  the  labor  of  the  lawyers  in  the  court  below  and  also  in  the 
court  above.  Consequently,  the  Court  of  Appeals  is  in  a  better 
position  to  decide,  and  it  is  not  necessary  that  we  should  have  a 
court  that  shall  outnumber  the  General  Term.  Under  section  399 
of  the  code,  a  single  clause  of  that  section,  with  reference  to  evi- 
dence, was  passed  upon  by  seven  General  Terms;  four  of  them  one 
way,  and  three  the  other;  four  times  four  are  sixteen,  making  six- 
teen judges  one  way,  and  twelve  the  other.  It  turned  out,  I  think, 
that  the  three  General  Terms  were  right.  The  Court  of  Appeals 
finally  got  the  case  and  affirmed  the  law  with  reference  to  that;  so 
that  there  was  no  difficulty  after  that  with  that  provision.  But  it 
seemed  to  me  that  it  was  a  clause  of  the  code  that  was  just  as  plain 
as  the  nose  on  a  man's  face,  and  yet  four  General  Terms  decided 
one  way,  and  three  the  other.  Of  course,  the  Court  of  Appeals  had 
the  benefit  of  all  their  decisions  and  the  opportunity  to  look  them 
all  over;  and  I  have  no  doubt  that  the  Court  of  Appeals  arrived  at 
a  correct  conclusion,  because  it  was  so  clear  that  it  seemed  to  me 
that  no  man,  though  a  fool,  need  err  therein.  Now,  Mr.  Chairman, 
if  there  should  be  any  necessity  hereafter  for  a  change  of  the  Court 
of  Appeals,  I  would  suggest  a  different  method  than  has  been  sug- 
gested here  so  far;  but  I  do  not  believe  there  will  be  any  necessity 
whatever;  and  that  is  one  reason  why  I  favored  four  General  Terms 
with  five  judges  each,  so  that  the  cases  might  be  correctly  decided 
in  the  General  Terms,  and  not  have  to  go  to  the  Court  of  Appeals 
in  order  to  get  a  correct  decision  of  the  law.  I  thought  that  would 
be  the  best  relief  that  could  be  given  to  the  Court  of  Appeals.  With 
reference  to  the  number  of  judges,  I  talked  with  an  ex-judge  of  the 
Court  of  Appeals,  and  he  said  seven  judges  were  as  many  as  could 
conveniently  consult  together,  and  for  that  reason  I  favored  seven 
judges,  instead  of  nine,  for  the  Court  of  Appeals.  The  proposition 
I  would  make  for  the  relief  of  the  Court  of  Appeals,  if  it  shall  be 
absolutely  necessary  to  have  nine  judges,  would  be  to  authorize  the 
Legislature  to  pass  a  law  allowing  the  people  to  elect  two  additional 
judges  to  the  court  whenever,  by  a  certificate  of  the  judges  of  the 
Court  of  Appeals,  and  by  observation,  it  was  found  that  the  Court 
of  Appeals  could  not  do  the  business.  It  seems  to  me  that  that 


1072  REVISED  RECORD.  [Wednesday, 

will  be  a  great  deal  better  than  to  have  any  Second  Division  of  the 
Court  of  Appeals,  and  might  afford  relief.  I  do  not  believe  that 
that  would  ever  become  necessary  in  practice.  I  think  that  the 
Court  of  Appeals  would  dispose  of  all  the  business  that  would  go 
up  there.  There  is  another  remedy  that  might  be  applied.  If  it  is 
found  necessary,  because  the  door  is  open  for  every  kind  of  appeal, 
no  matter  how  small  the  sum  or  how  triiflng  the  dispute,  it  might  be 
well,  perhaps,  to  allow  the  Legislature,  if  they  find  the  Court  of 
Appeals  is  congested  so  that  it  cannot  dispose  of  the  business,  to 
limit  the  amount;  limit  it  to  two,  three  or  five  hundred  dollars,  as 
shall  be  thought  proper,  for  the  relief  of  the  Court  of  Appeals.  It 
seems  to  me  that  in  that  way  the  court,  if  it  became  congested,  could 
be  relieved;  but  I  do  not  believe  that  will  occur.  I  think  that 
when  you  come  to  have  correct  decisions  at  the  General  Term,  a 
careful  examination  and  a  hearing  before  five  judges  at  General 
Term,  there  will  be  very  few  cases  that  will  be  carried  to  the  Court 
of  Appeals.  In  my  own  experience,  I  do  not  believe  that  I  should 
have  carried  many  cases  to  the  Court  of  Appeals  if  that  had  been 
the  case;  but  where  I  could  not  get  a  fair  hearing  before  the  General 
Term,  and  where  they  had  not  time,  or  did  not  look  at  the  case,  did 
not  look  at  the  points  that  were  made  at  all,  I  was  obliged  to  go  to 
the  Court  of  Appeals,  and  there  I  got  a  correct  decision,  notwith- 
standing there  were  but  seven  judges.  I  think  seven  judges  is 
enough. 

Mr.  Nicoll  —  Mr.  Chairman,  while  I  agree  with  the  worthy 
President  of  the  Convention,  that  the  spectacle  of  the  Convention, 
reversing  on  one  day  its  judgment  of  the  day  before,  is  not  a  spec- 
tacle admirable  in- itself,  I  believe  that  all  will  agree  with  me  that 
even  that  is  preferable  to  adherence  to  a  scheme  of  judicial  reform 
which,  when  it  has  been  promulgated  by  the  Convention,  will  be 
practically  nugatory.  What  will  be  said  or  thought  of  this  Con- 
vention if,  after  having  been  in  session  for  three  months  or  more, 
after  a  Judiciary  Committee  sat  for  six  or  seven  hours  a  day  during 
all  the  heated  term,  for  the  purpose  of  perfecting  a  judiciary  article 
and  for  the  purpose  of  remedying  the  evils  which  now  exist  in  the 
practice  of  the  law,  we  practically  leave  that  subject,  so  far  as  the  law's 
delay  is  concerned,  in  the  same  position  as  it  was  when  we  came 
here?  It  now  takes  two  years  practically  to  get  to  the  Court  of 
Appeals  in  this  State.  Every  lawyer  within  the  sound  of  my  voice 
knows  that  to  be  the  fact,  except  in  preferred  cases.  We  have 
now,  by  admission,  an  arrearage  on  the  Court  of  Appeals  calendar 
of  something  like  175  cases.  This  judiciary  article  will  not  go 
into  effect  until  the  first  day  of  January,  1896.  By  that  time  we 


August  22.]  CONSTITUTIONAL  CONVENTION.  1073 

shall  have  had  an  arrearage  of  not  less  than  350  or  400  cases.  So, 
that  before  the  provisions  embraced  in  this  judiciary  article  com- 
mence to  be  applied,  we  shall  have  an  arrearage  of  400  cases  for 
the  Court  of  Appeals  to  dispose  of,  more  than  two-thirds  of  a  year's 
work.  So  that  even  if  we  adopt  all  that  is  contained  in  the  present 
proposal  of  the  Judiciary  Committee,  we  can  expect  no  relief  what- 
ever until  some  time  in  the  year  1897  or  the  year  1898,  and  every 
one  of  us  now  engaged  in  the  practice  of  the  law  must  inform  our 
clients  that  although  we  have  done  the  best  we  could,  although  we 
have  perfected  a  judiciary  article  which  has  received  many  encomi- 
ums, we  have  really  done  nothing  to  cure  one  of  the  greatest  evils 
in  the  practice  of  the  law  prior  to  the  year  1897  or  1898,  and,  in  fact, 
that  would  be  impossible  to  be  done  unless  we  adopt  some  other 
system  of  judicial  reform  than  that  which  the  committee  have 
finally  expressed  in  the  proposed  article.  Now,  what  I  mean  to 
say  by  that  is  this,  that  unless  the  article  is  accepted  as  it  comes 
from  the  Judiciary  Committee,  with  the  nine  judges  and  the  scheme 
of  limitation  on  appeals  to  the  Court  of  Appeals  proposed  by  the 
committee,  we  might  as  well  begin  all  over  again  and  adopt  some 
other  system,  some  other  scheme  of  judicial  reform,  because  I 
believe,  as  presented,  it  constitutes  one  harmonious,  independent 
scheme  necessary  for  the  carrying  out  of  the  provisions  in  view. 

Mr.  Marshall  —  Mr.  Chairman,  may  I  ask  the  gentleman  a 
question? 

The  Chairman  —  If  the  gentleman  gives  way. 

Mr.  Nicoll  —  Of  course. 

Mr.  Marshall  —  Did  not  Mr..  Nicoll,  until  the  last  ballot  in  the 
committee,  vote  in  favor  of  seven  judges? 

Mr.  Nicoll  —  Yes ;  and  when  you  eliminated  the  Second  Division, 
then  I  said  we  must  have  nine.  (Applause.) 

Mr.  Choate  —  Will  Mr.  Nicoll  allow  me  to  ask  him  a  question? 

Mr.  Nicoll  —  Yes,  sir. 

Mr.  Choate  —  Does  he  mean  to  say,  when  speaking  for  the 
Judiciary  Committee,  that  if  this  Convention  modifies  any  one 
feature  of  the  scheme,  the  committee  is  against  the  whole  of  it? 

Mr.  Nicoll  —  I  am  not  authorized,  of  course,  to  speak  for  the 
Judiciary  Committee.  All  I  can  do  here  is  to  express  my  views 
within  the  conclusions  finally  arrived  at  by  that  committee. 

Mr.  Bowers  — Will  the  gentleman  allow  me  to  answer  Mr. 
Choate's  question?  I  wish  to  say,  sir,  in  answer  to  your  question, 

68 


io/4  REVISED  RECORD.  [Wednesday, 

that  several  of  us  yielded  the  proposition  to  abolish  the  Second 
Division,  and  several  of  us  yielded  other  propositions  of  equal 
moment,  when  the  nine  judges  were  accepted. 

Mr.  Nicoll  —  Now,  I  want  to  call  the  attention  of  the  Convention 
to  the  scheme  of  limitation  and  reform  proposed  by  the  Judiciary 
Committee,  for  the  purpose  of  showing  that  section  7,  which 
increases  the  number  of  judges  to  nine,  is  dependent  really  upon 
section  9,  which  provides  for  the  limitation  of  the  present  jurisdic- 
tion of  the  Court  of  Appeals.  We  understood  the  evil,  and  that 
was  the  delay  in  getting  to  the  Court  of  Appeals,  an  evil  which  has 
been  notorious  in  this  State  within  the  past  twenty  years.  We 
knew  that  two  commissions  had  been  appointed  in  that  time  for  the 
purpose  of  clearing  away  the  arrearage.  We  knew  that  we  must 
either  increase  the  judges  of  the  Court  of  Appeals  to  an  unlimited 
extent,  as  in  the  scheme  proposed  by  Mr.  Parmenter,  or  else  we 
must  adopt  some  iron-clad  system  of  limitation;  and  finally  we 
arrived,  by  way  of  compromise,  at  the  scheme  which  we  have  pre- 
sented to  this  Convention.  We  were  not  moved  by  any  consider- 
ations of  false  economy,  by  any  fear  of  making  an  undue  increase 
of  the  judges  of  the  Court  of  Appeals.  We  knew  that  there  had 
been  practically  no  increase  in  the  judicial  force  of  the  Supreme 
Court  and  of  the  Court  of  Appeals  in  this  State  in  the  past  ten 
years,  and  that  in  that  time  the  population  of  this  State  had 
increased  by  a  million  and  a  half;  so  that  the  time  is  ripe,  if  it  ever 
will  be  ripe,  for  such  an  increase  as  we  have  proposed.  And,  as 
I  say,  for  the  purpose  of  meeting  the  evil  acknowledged  to  exist, 
we  proposed  to  increase  the  court  a  little  and  at  the  same  time  to 
adopt  a  scheme  of  limitation.  Now,  what,  after  all,  have  we  done 
in  the  way  of  limiting  appeals?  We  have  prevented  appeals  here- 
after on  interlocutory  judgments  and  questions  of  practice.  Well, 
now,  that  amounts  to  something;  not  in  itself  enough.  We  have 
provided  that  there  shall  be  appeals  only  when  a  question  of  law  is 
involved,  and  we  have  tried  to  copper-fasten  that,  so  to  speak,  by 
defining  what  a  final  judgment  of  the  Appellate  Division  on  a 
question  of  fact  shall  be;  and  then  we  have  established,  as  an  ele- 
ment of  limitation,  the  Appellate  Division  of  the  Supreme  Court. 
And  these  are  all  our  elements  of  limitation.  First,  the  Appellate 
Division  of  the  Supreme  Court,  which  we  hope  will  have  a  tendency 
to  limit  appeals.  Whether  it  will  or  not  remains  problematical.  I 
believe  it  will  to  some  extent.  To  what  extent  no  one  can  say. 
What  percentage  of  appeals  it  will  cut  off,  who  can  estimate  at  the 
present  time?  It  may  be  two  or  three  per  cent.  I  do  not  believe 
that  it  will  be  ten  per  cent.  Still,  it  will  amount  to  something.  It 


August  22.]  CONSTITUTIONAL  CONVENTION.  1075 

is  a  valuable  contribution  to  the  scheme  of  limitation.  It  helps  us 
to  find  a  way  out.  Then,  we  have  the  limitation  with  regard  to 
questions  of  practice  and  interlocutory  judgments.  That  is  spme- 
thing  more.  Added  to  the  first,  it  is  an  additional  help.  Then  we 
have  the  absolute  constitutional  command  to  determine  nothing  in 
the  Court  of  Appeals  except  questions  of  law.  And  those  three, 
together  with  the  increase  of  two  judges,  for  the  purpose  of  provid- 
ing for  all  those  emergencies  and  accidents  which  must  constantly 
occur  in  a  court  of  old  men,  for  the  purpose  of  enabling  more  men 
to  be  at  work,  to  fill  the  place  of  members  who  are  absent,  consti- 
tute our  scheme.  Because,  you  must  recollect  that  while  we  have 
provided  all  these  methods  of  limitation,  we  have  at  the  same  time, 
as  has  been  pointed  out  in  this  discussion,  increased  the  jurisdic- 
tion of  the  Court  of  Appeals  —  that  is,  we  have  limited  it  on  the 
one  side  and  opened  the  door  on  the  other.  I  do  not  think  that 
the  opening  of  the  door  amounts  to  a  great  deal,  but  it  amounts 
to  enough  to  justify  us  in  putting  the  two  other  judges  upon  the 
Court  of  Appeals.  If  you  are  going  to  sweep  out  the  five  hundred 
dollar  limit,  a  limit  which  has  existed  in  this  State  for  years,  and 
which  is  founded  in  the  jurisprudence  of  almost  every  other  State 
in  the  Union  —  if  that  is  to  be  wiped  out,  a  proposition  which  I 
reluctantly  agreed  to  in  the  Judiciary  Committee  —  why,  then,  we 
must  increase  the  judges  in  the  Court  of  Appeals.  If  you  do  not 
do  that,  I  venture  to  predict  with  confidence,  that  all  this  system 
that  we  have  devised  for  the  purpose  of  curing  the  acknowledged 
evil  of  delay  in  presenting  our  appeals  to  the  court  of  last  resort 
and  obtaining  a  final  determination  of  contentions  between  suitors, 
will  amount  to  very  little.  And  while  I,  myself,  should  have  pre- 
ferred some  other  system  of  limitation;  while  I  agree,  generally 
speaking,  with  what  has  been  said  by  the  advocates  of  a  court  of 
last  resort  consisting  of  seven  persons,  while  my  preference  was 
for  a  scheme  of  money  limitation,  or  a  scheme  of  subject  limitation, 
or  that  there  could  be  no  question  about  preserving  the  court  of 
last  resort  as  a  small  court,  yet  if  this  is  the  system  to  be  adopted,  it 
is  the  system  which  we  have  finally  recommended,  after  months  of 
debate.  I  assure  you,  gentlemen,  that  one  part  of  it  is  necessary 
to  another,  and  that  if  you  take  away  one  part,  you  run  a  great  risk 
of  setting  all  our  labor  at  naught. 

Mr.   Mantanye  —  I   desire,  Mr.   Chairman,   simply  to  ask   Mr. 
Nicoll  a  question. 

The  Chairman  —  Does  the  gentleman  desire  to  answer  a  question 
or  not? 


1076  REVISED  RECORD.  [Wednesday, 

Mr.  Mantanye  —  It  is  simply  this,  how  can  a  Court  of  Appeals 
do  any  more  business  when  it  has  nine  judges,  and  requires  seven 
for  f.  quorum,  leaving  only  two  supernumeraries  to  fill  vacancies 
that  may  occur,  than  it  can  with  seven,  when  five  only  are  required 
for  a  quorum,  also  leaving  just  two  supernumeraries  to  fill  vacan- 
cies? I  cannot  see  why  one  of  those  courts  is  not  constituted  so 
that  it  can  do  just  as  much  business  as  the  other. 

Mr.  Nicoll  —  Well,  if  all  nine  sat  at  once,  of  course,  they  could 
not  do  very  much  more  business  than  a  court  of  seven,  although 
they  could  do  a  little  more  business. 

Mr.  Mantanye  —  If  nine  sat,  and  seven  were  required  for  a 
quorum 

Mr.  Nicoll  —  If  seven  were  required  for  a  quorum,  two  could  be 
working  upon  the  case  which  they  had  decided. 

Mr.  Mantanye  —  So,  in  case  seven  is  the  whole  number,  five  is  a 
quorum,  and  there  are  still  just  two  men  left  to  work  upon  the  cases 
just  the  same. 

Mr.  Nicoll  —  Then  you  have  added  two  more  men;  you  have 
added  two  more  men  to  do  the  work. 

Mr.  Mantanye  —  But  it  applies  in  one  case  just  the  same  as  it 
does  in  the  other.  There  are  two  extra  men  to  do  the  work. 

Mr.  Hawley  —  Mr.  Chairman,  I  hoped  not  to  intrude  at  all  upon 
this  discussion,  and  I  shall  not,  except  for  a  minute  or  two  upon  this 
occasion;  but  it  has  seemed  to  me  that  the  argument  which  has 
just  been  addressed  to  the  committee  is  entirely  aside  from  the 
question  which  is  now  under  consideration;  that  the  question  as  to 
whether  we  shall  have  seven  judges  or  nine  judges  does  not  at  all 
depend  upon  whether  the  Judiciary  Committee  has  been  successful 
in  its  various  schemes  to  limit  the  number  of  cases  which  shall  find 
their  way  to  the  Court  of  Appeals.  The  simple  question  is  the 
one  suggested  by  the  interrogatories  that  have  just  been  made  by 
the  gentleman  who  last  addressed  the  committee,  and  that  is, 
whether,  taking  the  work  as  it  is  and  is  to  be,  nine  men  can  do  any 
more  work  than  seven?  Now,  upon  that  question  I  confess  that  I 
have  as  yet  received  no  satisfactory  evidence  that  the  nine  will  do  any 
more  than  the  seven.  As  was  suggested  by  the  inquiry  just  made, 
in  the  one  case  equally  with  the  other,  there  is  a  reserve  force  of 
two.  Nine  judges,  with  seven  making  a  quorum;  seven  judges, 
with  five  making  a  quorum,  leaves  exactly  the  same  reserve  force 
to  supply  deficiencies  on  account  of  health  or  business,  or  of  fatigue, 
or  to  be  off  the  bench  writing  opinions,  in  the  one  case  just  exactly 
the  same  as  in  the  other;  and  so,  until  some  more  satisfactory  solu- 


August  22.]  CONSTITUTIONAL  CONVENTION.  1077 

tion  of  that  inquiry  is  presented,  some  more  evidence  is  produced 
that  nine  judges  will  make  a  more  effective  working  court  and  be 
able  to  dispose  of  more  business  than  seven,  my  mind,  of  course, 
would  incline  to  the  seven  rather  than  to  the  nine. 

A  single  other  suggestion  and  I  have  done.  The  learned  gentle- 
man who  last  addressed  the  Convention  presented  to  us  the  picture 
of  this  article  going  into  effect  with  an  arrearage  of  four  or  five 
hundred  causes  staring  the  Court  of  Appeals  in  its  face  as  they 
enter  upon  their  duties  under  this  new  system.  If  that  be  true, 
and  there  is  likely  to  be  an  arrearage  of  four  or  five  hundred  causes, 
and  the  Court  of  Appeals  desires,  as  it  doubtless  will  desire,  to  make 
this  scheme  a  success,  it  will  take  advantage  of  its  present  power 
undoubtedly  and  start  with  a  clear  calendar,  by  giving  that  arrear- 
age, under  the  present  provision,  to  the  Second  Division,  which  it 
may  at  any  time  create. 

Mr.  McClure — I  think,  sir,  that  the  importance  of  this  subject 
is  apology  sufficient  for  the  intrusion  by  any  member  of  his  views 
upon  the  Convention  touching  this  subject.  I  am  inclined  to  think, 
sir,  that  the  people  will  conclude  that  so  far  as  relief  in  litigation  is 
concerned,  this  Convention  will  have  been  an  abject  failure,  unless 
some  relief  is  given  by  way  of  more  expedition  in  the  Court  of 
Appeals.  Now,  Mr.  Chairman,  this  Convention,  supported,  I  dare 
say,  by  the  voice  and  vote  of  its  able  President,  the  section 
which  provides  for  an  increase  in  the  number  of  judges  composing 
the  General  Term.  I  do  not  know,  Mr.  Chairman  and  gentlemen, 
who  asked  for  that  relief.  In  the  great  city  of  New  York,  which 
I  in  part  have  the  honor  to  represent,  we  have  had  a  General  Term 
of  three  judges,  and  it  has  given  perfect  satisfaction.  We  have  had 
a  General  Term  sitting  for  two  weeks  of  every  month,  disposing  of 
every  appeal  upon  the  calendar  promptly,  and  to  the  satisfaction  of 
the  bar  and  of.  litigants,  three  judges  sitting  there.  Why,  there- 
fore, Mr.  Chairman,  should  there  be  an  increase  in  the  number  to 
seven,  an  increase  in  the  expenditure  also?  My  friend,  Mr.  Brown, 
as  I  understand,  opposed  the  provision  increasing  the  Court  of 
Appeals  to  nine,  upon  the  score  of  economy,  and  yet  the  General 
Terms  throughout  the  State,  composed  of  Supreme  Court  judges, 
are  to  be  increased,  and  in  the  great  city  of  New  York,  as  I  con- 
sider it,  unnecessarily  increased  to  the  number  of  seven  judges. 
Now,  Mr.  Chairman,  if  there  is  any  propriety  in  that,  and  I  believe 
that  there  may  be  some  reason  for  it,  so  that  there  may  be,  perhaps, 
throughout  the  whole  of  the  month  in  the  city  of  New  York,  a 
General  Term  sitting,  there  is  every  reason  why  there  should  be 
an  increase  in  the  number 'of  the  judges  of  the  Court  of  Appeals. 


1078  REVISED  RECORD.  [Wednesday, 

Mr.  Chairman,  with  all  respect  to  the  Judiciary  Committee,  may  I 
be  permitted  to  say  that  I  do  not  base  my  action  at  all  upon  the 
action  of  either  the  minority  or  the  majority  of  that  committee  upon 
this  question.  There  appeared  before  the  Judiciary  Committee, 
and,  1  have  no  doubt,  influenced  its  action,  judges  of  the  Court  of 
Appeals,  who  desired,  perhaps,  with  the  greatest  propriety,  that  the 
number  of  the  judges  of  that  court  should' be  limited,  that  the  fam- 
ily circle  should  be  as  small  as  possible,  and  I  am  inclined  to  believe 
that  a  certain  number  of  the  minority  of  that  Judiciary  Committee 
who  did  not  favor  nine  judges,  were  influenced  by  the  appearance 
and  suggestion  of  the  judges  of  the  Court  of  Appeals  with  regard 
to  their  ability  to  do  the  business  and  their  disinclination  to  have 
the  number  of  judges  increased;  and  yet,  Mr.  Chairman,  there 
appeared  before  that  same  committee  judges  representing  twelve 
judges  of  the  Court  of  Common  Pleas  and  the  Superior  Court  of 
the  city  of  New  York,  and  the  Judiciary  Committee  in  its  wisdom, 
and  I  consider  it  wisdom,  decided  to  disregard  the  wishes  of  those 
twelve  judges  who  opposed  the  consolidation  of  their  courts  with 
the  Supreme  Court,  and  reported  in  favor  of  their  consolidation  with 
the  Supreme  Court.  Therefore,  I  think  we  ought  not,  as  the 
Judiciary  Committee  promptly  disregarded  the  views  of  those  two 
courts,  to  consider  as  having  any  very  great  influence  upon  us  the 
wishes  of  the  judges  of  the  Court  of  Appeals. 

Now,  Mr.  Chairman,  practically,  what  will  be  the  benefit  to  us  of 
having  these  judges?  The  benefit  will  be  that  we  will  have  a  court 
of  nine  judges  in  the  Court  of  Appeals.  I  do  not  think  that  the 
argument  of  the  President  of  this  Convention,  which  carries  with  it 
necessarily,  naturally  and  properly,  so  much  weight,  not  only  by 
reason  of  the  office  which  he  holds  in  this  body,  but  by  reason  of 
his  great  personal  ability  and  high  character — I  do  not  think  that 
the  argument  that  he  made  with  reference  to  there  being  nine  judges 
of  the  Court  of  Appeals,  seven  of  whom  shall  sit,  possessed  much 
force,  although  presented  with  considerable  emphasis.  He  sup- 
ported the  article  with  reference  to  the  Supreme  Court  appellate 
bench,  which  provides  that  although  seven  shall  be  the  bench,  four 
shall  be  a  quorum,  and  where  are  the  three  others  to  disport  them- 
selves while  the  four  are  doing  the  business  of  that  court?  Why 
should  not  there  be  a  lee-way  in  the  Court  of  Appeals,  two  extra 
judges  writing  opinions  and  doing  extraordinary  work,  the  same 
as  the  lee-way  of  the  three  extra  judges  of  the  Supreme  Court  of 
the  appellate  bench,  as  the  act  now  provides?  And,  Mr.  Chairman, 
there  is  a  provision  in  regard  to  that  Supreme  Court  appellate  bench 
that,  in  the  matter  of  economy,  in  the  -matter  of  propriety,  so  far 


August  22.]  CONSTITUTIONAL  CONVENTION.  1079 

as  the  interests  of  litigants  are  concerned,  that  is  very  objectionable, 
and  can  only  secure  the  approval  of  this  Convention  in  case  such 
a  suggestion  which  relates  to  the  Court  of  Appeals  should  be 
adopted.  The  Judiciary  Committee  and  the  President  favored  an 
article  which  provides  that  the  seven  judges  composing  the  Appel- 
late Bench  of  the  Supreme  Court  in  the  city  of  New  York,  practi- 
cally, shall  not  do  any  other  business,  although  there  may  be  only 
four  of  them  sitting  upon  the  bench,  and  yet  objection  is  made  to 
the  fact  that  one  or  two  judges  in  the  increased  Court  of  Appeals 
may  not  be  always  sitting  upon  the  bench.  I  support  the  article 
that  refers  to  the  Supreme  Court  Appellate  Bench,  although  I 
object  personally  to  the  provision  that  does  not  allow  them  to  do 
other  business;  but  I  think  consistency  in  reference  to  this  judiciary 
article  requires  that  we  should  have  an  increase  of  judges  in  the 
Court  of  Appeals. 

Now,  Mr.  Chairman,  this  is  an  important  question  to  go  before 
the  people.  I  do  not  surrender,  as  my  friend  from  St.  Lawrence 
said  should  be  surrendered  by  the  minority,  the  entire  responsibility 
for  the  work  of  this  Convention.  I  do  not  surrender  it.  I  repre- 
sent in  part  the  city  of  New  York,  where  there  is  more  litigation 
in  quantity  and  quality  than  all  the  rest  of  the  State  combined,  and 
I  cannot  sit  here  and  have  this  Convention  adopt  an  article  which, 
as  Mr.  Nicoll  says,  will  require  us  to  say  to  our  clients  that  we  have 
done  nothing  unless  we  add  to  the  judges  of  the  Court  of  Appeals. 
I  say  that  the  people  have  a  right  to  say  that  this  Convention  has 
utterly  failed.  It  has  created  new  officers.  I  do  not  know  how 
many  candidates  there  may  be  in  the  Convention  for  these  new 
judgeships,  or  how  many  there  may  be  in  the  Judiciary  Committee, 
but  they  have  increased  the  officers  and  they  have  added  to  the 
expense  of  the  State,  and  have  given  not  one  particle  of  relief  to 
the  litigants.  Look  at  the  condition  now.  I  know  it  as  a  fact  that 
appeals  in  the  last  ten  years  have  been  taken  to  the  Court  of  Appeals 
simply  to  gain  time.  '  A  bond  has  been  given  and  the  judgment 
debtor  has  done  business  for  two  or  three  years  upon  the  capital 
that  was  represented  by  the  amount  of  the  judgment,  and  when  the 
case  has  been  reached  in  the  Court  of  Appeals  there  has  been  a 
default,  and  there  has  not  been  even  the  temerity  to  make  an  argu- 
ment. Everyone  knows  that.  He  goes  on  doing  business,  mak- 
ing ten,  twelve  or  fifteen  per  cent  out  of  the  money,  instead  of  the 
six  per  cent  which  the  judgment  carries.  I  am  earnestly  in  favor 
of  the  motion  to  reconsider  this  thing.  I  voted  to  reconsider  Mr. 
Dickey's  proposition  to  have  his  Second  Division  in  the  hope  that 
this  nine  judge  provision  might  be  adopted,  because  I  think  it  is 


1080  REVISED  RECORD.  [Wednesday, 

better  to  have  one  court  with  nine  judges  present.  We  must  have 
some  relief,  and  I  will  favor  his  provision  for  nine  judges.  I  want 
to  go  on  record  positively,  clearly,  and  emphatically  as  I  can,  that  I 
believe  and  assert,  and  I  do  here  now,  that  we  have  failed  in  giving 
relief,  unless  we  carry  it  out.  This  notion  of  relieving  the  Court 
of  Appeals  by  this  Appellate  Supreme  Court  may  be  a  success. 
However,  it  is  an  experiment.  We  don't  know  whether  it  will  suc- 
ceed or  not,  and  even  if  the  money  limit  is  restored  to  five  hundred 
dollars,  as  I  believe  it  ought  to  be,  yet  the  Court  of  Appeals  remain 
with  the  natural  increase  of  business,  and  the  fact  that  they  are  now 
way  behind  with  their  business.  It  seems  to  me  that  throughout  the 
whole  question,  there  cannot  be  a  bit  of  doubt  but  that  the  recom- 
mendation of  the  committee  should  be  carried  and  the  motion  to 
reconsider  be  adopted. 

Mr.  Hotchkiss  —  Will  the  gentleman  give  way  for  a  question? 

Mr.  McClure  —  Yes,  sir. 

Mr.  Hotchkiss  —  Is  it  not  a  fact  that  the  Court  of  Appeals  has 
the  power  to  impose  a  penalty  of  ten  per  cent  where  they  find  that 
a  case  has  been  appealed  unjustifiably? 

Mr.  McClure  —  Yes,  and  the  gentleman  cannot  point  to  one  case 
where  they  enforced  that  penalty. 

Mr.  Hotchkiss  —  The  books  are  full  of  it. 

Mr.  McClure  —  A  man  in  Wall  street  can  make  twenty  per  cent 
out  of  the  money,  even  if  he  has  to  pay  ten  per  cent  to  the  judg- 
ment-creditor. Very  often  where  a  bond  is  given  and  two  years 
have  elapsed  the  bond  is  worthless  and  the  judgment-creditor  is 
worthless. 

Mr.  Becker  —  Mr.  Chairman,  I  merely  want  to  call  attention  to 
one  argument  that  has  been  used  against  this  increase,  and  that  is 
the  expense.  I  desire  to  say  to  this  Convention  that  in  abolishing 
the  Superior  Court  of  the  city  of  New  York,  the  Common  Pleas 
Court  of  the  City  of  New  York,  the  City  Court  in  Brooklyn,  the 
Superior  Court  of  Buffalo,  the  clerk's  offices  in  those  courts  going 
with  them,  and  being  merged  into  the  county  clerks'  offices,  who 
are  the  clerks  of  the  Supreme  Court  in  those  portions  of  the  State, 
a  very  large  saving  to  the  taxpayers  will  be  effected.  One  of  the 
justices  of  the  Superior  Court  of  the  city  of  New  York  stated  before 
the  Judiciary  Committee,  in  answer  to  a  question  put  to  him  by 
one  of  the  members  of  the  committee,  that  that  saving  would  prob- 
ably amount  to  upward  of  $75,000  per  year.  In  the  city  of  Buffalo 
we  have  been  endeavoring  for  some  time  to  abolish  the  clerk's 
office  of  the  Superior  court  and  merge  its  duties  and  work  in  the- 


August  22.]  CONSTITUTIONAL  CONVENTION.  1081 

office  of  the  county  clerk.  A  very  careful  analysis  was  made  by 
the  clerk  himself  (and  he  certainly  did  not  put  the  figures  any  too 
high  of  what  that  clerk's  office  cost),  and  we  estimated,  that  is,  a 
committee  of  the  Citizens'  Association  did,  from  his  statement,  that 
at  least  the  salary  of  one  judge  of  that  court,  to  the  amount  of  about 
$6,000  a  year,  would  be  saved  by  abolishing  that  clerk's  office. 
Now,  taking  these  figures  together,  you  will  find  that  by  the  aboli- 
tion of  these  clerks'  offices  alone,  to  say  nothing  about  what  will 
be  saved  by  doing  away  with  judicial  pensions  in  this  State,  you 
have  saved  more  than  enough  to  pay  the  salaries  of  the  additional 
Supreme  Court  judges  and  the  two  additional  judges  of  the  Court 
of  Appeals,  as  proposed  in  this  amendment.  It  can  be  demon- 
strated by  figures  that  the  saving  will  take  place.  You  all  know 
that  it  is  the  tendency  of  the  head  of  an  office  to  draw  a  large  salary 
for  his  services  and  expenses  and  let  his  deputy  do  all  the  work. 
It  is  not  always  the  case,  but  there  is  a  tendency  that  way.  This 
work  will  all  now  fall  upon  the  hands  of  the  two  deputies  in  the 
county  clerks'  offices. 

We  will  save  enough  in  abolishing  these  clerks'  offices  to  pay 
these  additional  salaries,  saying  nothing  of  the  pensions,  as  shown 
by  the  statement  which  has  been  submitted  by  the  Comptroller  of 
the  State,  showing  the  average  amount  of  pensions  each  year  to 
Supreme  Court  judges  and  Court  of  Appeals  judges.  In  view  of 
this  fact,  how  can  it  be  said  as  a  matter  of  economy  that  this  addi- 
tional force  should  not  be  granted?  I  merely  want  to  call  attention  t 
to  these  facts  and  figures,  because  it  has  been  urged  here  that  dele- 
gates should  vote  against  any  increase  in  the  judges  on  account  of 
the  hard  times  and  additional  expense.  I  believe  that  it  can  be 
demonstrated  that  the  saving  that  is  brought  about  by  the  other 
provisions  of  the  judiciary  article  is  such  that  it  will  pay  the  salaries 
of  the  extra  judges,  and  more  than  pay  them. 

Mr.  M.  E.  Lewis  —  Mr.  Chairman,  if  this  motion  to  reconsider 
shall  be  adopted,  I  shall  feel  like  agreeing  with  the  distinguished 
member  of  this  Convention,  and  the  remarks  recently  made  by  him 
in  relation  to  the  comparative  qualification  of  men  and  women  for 
membership  in  this  Convention.  We  met  here,  yesterday  and  sol- 
emnly debated  this  question  the  entire  day.  After  a  long  discus- 
sion we  decided  to  adopt  the  amendment  offered  by  Mr.  Brown. 
To-day  we  meet  and  solemnly  proceed  to  undo  the  work  of  yester- 
day. If  there  is  no  stability  in  this  Convention,  the  best  thing  it 
can  do  will  be  to  adopt  a  motion  to  adjourn  without  day,  and  cease 
to  make  a  spectacle  of  ourselves  of  having  a  motion  adopted  one 
day  reconsidered  the  next. 


1082  REVISED  RECORD.  [Wednesday, 

Mr.  Bowers  —  Have  we  not  done  that  very  thing  this  morning? 
Mr.  Lewis  —  Not  after  full  consideration  of  the  question. 
Mr.  Bowers  —  Yes,  after  a  very  full  consideration. 

Mr.  Griswold  —  Mr.  Chairman,  it  is  but  a  very  few  words  that  I 
propose  to  say  in  reference  to  this  question  under  discussion,  and 
it  is  not  with  a  spirit  of  antagonism  or  criticism  of  the  work  that 
has  been  done  so  well  by  this  committee,  because  all  concede  that 
they  have  bestowed  great  labor  and  attention  on  this  proposed 
article.  But,  sir,  there  are  certain  things  that  should  be  taken  into 
consideration.  There  is  one  thing  that  is  a  necessity,  and  that  is  to 
relieve  the  Court  of  Appeals  that  now  stands  blocked,  litigants 
being  unable  to  have  their  cases  decided.  Now,  for  the  purpose  of 
relieving  the  Court  of  Appeals,  what  do  we  find  here  in  the  measure 
as  reported?  We  find  that  instead  of  three  judges,  that  the  General 
Terms  have  five  provided  for  them.  Who  can  tell  whether  that 
will  lessen  the  appeals  to  the  Court  of  Appeals?  It  is  a  matter 
entirely  problematical  whether  a  lawyer  who  has  carried  his  case 
in  good  faith  to  the  General  Term,  will  rest  quietly  under  the  decis- 
ion of  five  judges,  three  of  them,  perhaps,  one  way,  and  he  having 
the  Special  Term  judge  and  the  other  two.  It  is  entirely  prob- 
lematical whether,  in  providing  for  five  judges  of  the  General  Term, 
it  will  in  any  way  tend  to  relieve  the  Court  of  Appeals. 

Another  proposition  that  is  made  here  is  in  reference  to  two 
additional  judges  to  the  Court  of  Appeals,  and  that  is,  even  if 
adopted,  just  as  problematical  as  to  relieving  the  Court  of  Appeals, 
and  delegates  are  not  in  harmony  upon  that  subject.  Some  think 
one  way,  and  some  another.  Now,  sir,  those  two  things,  adding 
the  two  judges  to  the  Court  of  Appeals  and  making  five  judges  in 
the  General  Term,  are  expected  to  expedite  the  work.  The  only 
thing  that  I  can  see  about  this  proposed  provision  or  amendment 
that  will  in  any  way  tend  to  relieve  us  of  this  block  in  the  Court  of 
Appeals  is  to  limit  appeals,  and  the  line  of  limitation  is  not  the 
importance  of  the  subject,  but  to  limit  appeals  so  that  it  will  be  in 
accordance  with  the  strength  of  the  appellate  court  to  dispose  of 
them,  and  that  is  a  line  of  limitation  that  I  have  never  before  heard 
of.  After  this  is  done,  I  fear  we  shall  hear  clamor  as  soon  as  this 
Convention  adjourns.  I  believe  that  lawyers  will  be  dissatisfied  with 
this  unusual  limitation  that  has  never  existed  before  and  this  line 
of  limitation  that  is  arbitrary. 

Further,  there  is  another  provision  here  with  regard  to  this 
limitation  of  cases.  It  is  that  there  shall  be  no  appeal  to  the 
Court  of  Appeals  from  interlocutory  judgments.  Take  the  case 


August  22.]  CONSTITUTIONAL  CONVENTION.  1083 

of  an  interlocutory  judgment.  I  serve  my  complaint  against 
the  gentleman,  the  lawyer  or  his  client.  He  puts  in  an  answer 
that  he  claims  two  separate  defenses  against  my  complaint. 
I  put  in  a  demurrer  to  one  defense  and  the  court  sustains 
my  demurrer  at  the  General  Term,  which  constitutes  an  inter- 
locutory judgment,  and  that  one  defense  of  his  is  stricken  out. 
Now,  you  can't  appeal  to  the  Court  of  Appeals.  You  cannot  per- 
fect your  pleadings  at  all  until  you  have  gone  back,  and  he  is 
compelled  to  try  his  case  standing  on  one  leg,  for  one  of  his  defenses 
has  been  stricken  out,  and  the  only  way  is  to  take  a  circuitous 
course,  going  back  with  all  the  expenses  of  the  trial  to  the  General 
Term,  which  will  decide  the  same  way,  and  then  have  a  final  judg- 
ment, and  then,  after  that,  go  to  the  Court  of  Appeals,  so  that  before 
you  perfect  your  pleadings  in  the  case  you  have  got  to  have  a 
trial,  with  all  your  additional  expenses  of  the  re-appeal  to  the  Gen- 
eral Term.  This  was  the  parctice,  if  I  remember  correctly,  before 
our  practice  of  a  new  appeal  to  the  Court  of  Appeals  from  an  inter- 
locutory judgment,  and  it  was  removed. 

Now,  it  must  be,  that  when  we  have  made  this  provision,  the 
only  way  that  will  relieve  the  Court  of  Appeals  is  to  cut  off  appeals 
down  to  that  extent  that  the  Court  of  Appeals,  working  as  slowly 
as  they  may,  can  dispose  of  them.  In  other  words,  we  bring  appeals 
according  to  the  capacity  of  the  Court  of  Appeals. 

I  simply  make  these  suggestions  without  intending  criticism  on 
the  great  work  that  has  been  performed  by  this  committee,  whom  I 
respect  for  their  talents  and  ability.  But  I  believe  that  you  will 
find,  when  you  have  got  this  amendment  in  this  way,  great  objec- 
tion will  be  made  by  intelligent  lawyers,  without  any  disparagement 
of  the  members  of  the  committee  or  the  advocates  of  this  provision. 
I  do  think  that  some  provision  should  be  made  to  relieve  the  Court 
of  Appeals  from  the  position  in  which  it  stands,  without  a  mere 
limitation  of  appeals  that  we  have  heretofore  had. 

Mr.  Cochran  —  Mr.  Chairman,  so  much  has  been  said  upon  the 
question  now  before  the  committee  that  I  do  not  desire  to  take  up 
the  time  any  further  than  to  make  a  single  suggestion.  I  have  lis- 
tened with  great  attention  to  all  that  has  been  said  upon  the  ques- 
tion, and  I  have  not  as  yet  heard  that  you  will  have  any  better  law 
from  the  Court  of  Appeals  by  increasing  the  number  of  judges  to 
nine  than  if  you  leave  it  at  the  present  number,  seven.  The  whole 
question  seems  to  be  whether  we  have  afforded  proper  relief  to  the 
Court  of  Appeals  and  to  the  suitors,  that  they  may  have  their  cases 
disposed  of  promptly  when  they  reach  that  court.  We  have  heard 
a  great  deal  of  what  the  limitations  should  be  of  taking  cases  to  the 


1084  REVISED  RECORD.  [Wednesday, 

Court  of  Appeals.  We  have  also  heard  it  said  that  the  removal  of 
the  five-hundred-dollar  limit  would  tend  to  increase  the  number  of 
cases  on  the  Court  of  Appeals  calendar.  But  I  have  not  as  yet 
heard  what  the  effect  would  be  by  the  establishment  of  this  inter- 
mediate tribunal,  and  I  venture  to  make  the  suggestion  that  if,  in 
the  establishment  of  the  Appellate  Division  of  the  Supreme  Court, 
confidence  would  be  established  and  the  people  would  be  satisfied 
with  the  decisions  of  that  intermediate  court,  many  of  the  appeals 
that  are  taken  to  the  Court  of  Appeals  would  be  shut  off. 

Mr.  Griswold  —  May  I  ask  the  gentleman  a  question? 

Mr.  Cochran  —  You  may,  and  I  will  answer  it  if  I  can  compre- 
hend it. 

Mr.  Griswold  —  I  take  this  occasion  to  say  that  I  did  not,  in 
what  I  said,  advocate  the  simple  addition  of  two  judges.  I  meant  to 
say  that  I  hoped  that  this  Convention  could  relieve  the  Court  of 
Appeals  in  some  other  way  than  by  this  limitation;  whether  we 
have  seven  judges  or  nine  judges  does  not  matter  much. 

Mr.  Bush  —  Mr.  Chairman,  this  debate  seems  to  be  extending 
somewhat  to  the  whole  article  instead  of  the  question  at  issue.  As 
I  understand  it,  the  question  now  at  issue  and  the  question  to  be 
reconsidered,  is  whether  or  not  we  shall  have  nine  or  seven  judges. 
Now,  I  never  have  considered  that  of  such  vital  importance  as  the 
Convention  seems  to  consider  it.  In  the  committee  I  was  in  favor 
of  the  seven  judges  from  start  to  finish,  and  I  am  still  in  that  posi- 
tion; but  when  the  committee  made  its  report,  I  was  willing  to 
stand  by  that  report  from  start  to  finish,  and  I  am  willing  to  do  so 
yet.  But  if  this  question  of  nine  to  seven  judges  is  to  be  decided 
here  now,  which  I  suppose  it  is,  I  think  it  advisable  to  state  the 
reasons  why  I  think  that  seven  judges  are  preferable  to  nine  under 
the  present  circumstances,  and  I  may  say  that  I  do  not  consider  it 
of  serious  importance  in  any  case.  First,  if  we  are  to  increase  the 
number  of  judges,  there  should  be  at  least  some  good  and  logical 
reason  for  it,  and  I  am  not  satisfied  from  all  the  information  that 
the  Committee  on  Judiciary  could  obtain  that  nine  judges  could  do 
much  more  work  than  seven,  or  that  it  would  be  necessary  to  make 
the  change.  On  the  contrary,  I  think  there  is  very  serious  objec- 
tion to  making  the  increase  of  two  judges,  and  for  this  reason. 
There  are  a  great  many  important  cases  which  have  been  decided 
by  the  Court  of  Appeals  in  recent  years  by  a  majority  of  four  to 
three,  particularly  the  elevated  railway  cases.  Now,  if  you  add  two 
judges  to  the  Court  of  Appeals,  you  virtually  reopen  every  case 
which  that  court  has  decided  by  a  vote  of  four  to  three  for  the  last 


August  22.]  CONSTITUTIONAL  CONVENTION.  1085 

ten  years,  and  every  question  of  that  character  will  then  be  brought 
to  that  court  in  the  hope  that  the  two  new  judges  who  will  be  put 
on  the  bench  may  reverse  those  decisions. 

Mr.  McClure  —  Mr.  Chairman,  may  I  ask  the  gentleman  a  ques- 
tion? Is  the  gentleman  aware  of  the  fact  that  the  Court  of  Appeals, 
composed  of  seven  justices,  has  over  and  over  again  reversed  itself? 

Mr.  Bush  —  That  may  be  true,  Mr.  Chairman,  but  there  is  a 
much  greater  likelihood  of  reversing  itself  when  you  add  two  new 
judges  as  is  proposed,  when,  perhaps,  some  of  those  judges  may 
be  nominated  on  account  of  their  views  on  some  serious  questions 
that  are  now  pending.  Take  the  elevated  railway  cases  in  the  city 
of  New  York.  You  will  always  find  in  such  cases  as  these  that  a 
great  corporation  will  be  actuated  by  a  powerful  motive  for  dictating 
the  nomination  of  the  judges  of  this  State  in  accordance  with  their 
views  upon  these  questions,  and  that  is  not  only  true  as  to  this 
State,  but  it  is  said  that  the  Supreme  Court  of  the  United  States 
has  often  had  a  judge  placed  upon  it  for  his  known  views  upon  a 
particular  question,  for  instance,  the  greenback  question,  and  for 
that  reason  I  think,  Mr.  Chairman,  this  Convention  should  hesitate 
and  weigh  carefully  whether  the  advantages  to  be  gained  by  adding 
two  judges  to  that  court  will  not  bear  with  it  the  danger'  of  a 
reversal  of  that  court  upon  the  great  questions  which  have  been 
decided  by  it  by  four  to  three.  That  is  one  point  that  this  Con- 
vention should  look  at  and  consider  in  determining  this  question. 
That  is  the  reason  why  I  stood  out  for  seven  judges  all  the  way 
through;  and  I  am  of  the  same  opinion  yet,  that  adding  the  two 
judges  will  not  counterbalance  the  danger  which  will  arise  from 
the  reversal  of  established  legal  decisions  which  have  been  made 
by  that  court  on  those  questions. 

Mr.  Root  —  Mr.  Chairman,  I  feel  justified  in  saying  for  the  Judi- 
ciary Committee  as  a  whole  —  and  I  know  that  I  represent  the 
prevailing  sentiment  of  that  committee  when  I  say  it  —  that  the 
committee  made  this  report  and  came  into  this  Convention  con- 
templating the  possible,  perhaps  the  probable,  action  of  the  Con- 
vention in  the  exercise  of  its  deliberate  judgment  adversely  to  some, 
or  to  many,  of  the  conclusions  of  the  committee,  and  prepared  to 
bow  loyally  to  the  action  of  the  Convention.  No  member  of  the 
committee,  sir,  I  venture  to  say,  intends  or  dreams  of  arrogating 
to  himself  or  to  the  committee  any  right  which  shall  preclude  the 
Convention  from  the  free  and  full  exercise  and  the  expression  of 
its  voice  and  vote,  of  its  deliberate  judgment,  upon  every  question 
raised  by  this  judiciary  article.  We  say  nothing  upon  that  subject 


1086  REVISED  RECORD.  [Wednesday, 

but  this,  that  after  the  long  weeks  and  months  during  which  we 
have  deliberated  upon  this  question,  we  are  entitled  to  a  presumption 
in  favor  of  our  conclusions,  and  to  have  the  gentlemen  of  the  Con- 
vention vote  on  them,  giving  us  credit  for  honest,  fair  consideration, 
and  for  some  degree  of  sense  in  reaching  our  conclusions;  vote 
for  them,  unless  upon  deliberate  consideration,  good  cause  appears 
for  voting  otherwise.  That  is  all  we  ask.  Are  we  not  entitled  to 
it,  sir?  Is  not  every  committee  which  furnishes  any  fair  degree  of 
evidence  of  careful,  painstaking  and  honest  consideration  of  its 
work  entitled  to  that  presumption?  So  that  while  every  delegate 
votes  according  to  his  convictions,  the  result  of  his  reasoning  and 
his  own  thought,  every  delegate  will  stand  by  the  committee,  unless 
he  sees  cause  to  the  contrary.  Now,  sir,  all  that  we  ask  is  that 
this  Convention  shall  settle  this  question,  and  settle  it  once  for  all 
in  accordance  with  its  deliberate  judgment.  The  motion  to  recon- 
sider this  question  was  made  by  the  gentleman  from  Essex,  largely 
because  since  the  vote  of  yesterday  there  had  been  discussion  upon 
other  parts  of  the  article,  and  there  had  been  in  various  quarters 
the  expression  of  the  opinion  that  the  scheme  of  limitation  was  not 
efficient  without  either  the  enlargement  of  the  court  or  the  pro- 
vision for  a  Second  Division.  The  motion  for  the  reconsideration 
brings  again  before  this  Committee  of  the  Whole  that  question. 
Whether  it  sees  fit  in  the  light  of  the  further  discussion  of  other 
parts  of  the  scheme  to  reconsider  its  action  or  not,  I  shall  bow,  and 
every  member  of  the  Judiciary  Committee  will  bow  to  its  decision 
and  proceed  to  other  matters.  But,  sir,  I  still  believe  that  nine  men 
can  do  more  work  than  seven  (applause),  and  in  endeavoring  to 
make  a  perfected  and  harmonious  scheme,  which  will  accomplish 
the  result  we  are  sent  here  to  accomplish  in  respect  of  the  adminis- 
tration of  the  law,  it  is  better  to  add  here  something  and  there 
something  else,  a  provision  to  make  the  Court  of  Appeals  a  bench 
of  nine,  and  I  shall,  therefore,  vote  for  the  reconsideration. 

Mr.  Storm  —  Mr-  Chairman,  my  head  is  so  full  of  nine  and  seven 
judges  that  it  cannot  contain  any  more,  and  I  trust  that  we  will 
come  to  a  vote.  I  will  confess  that  after  all  the  discussion  that  has 
taken  place,  I  am  no  clearer  on  the  subject  than  before.  It  is  often 
charged  that  some  of  us  vote  only  as  the  leaders  dictate.  This  time 
I  do  not  know  which  leader  to  follow.  However,  I  hope  we  will 
come  to  a  vote  and  follow  somebody. 

Mr.  C.  B.  McLaughlin  —  I  know  the  delegates  of  this  Con- 
vention are  ready  to  vote  upon  this  proposition,  but  let  us  vote  with 
our  eyes  open;  let  us  vote  understandinglv.  Now,  if  there  is  any 


August  22.]  CONSTITUTIONAL  CONVENTION.  1087 

one  feature  in  this  proposed  amendment  that  is  popular,  I  believe 
it  consists  in  the  fact  that  the  committee  has  stricken  from  the 
present  Constitution  the  $500  limitation.  Now,  a  member  of  this 
Judiciary  Committee,  as  I  am  told,  who  has  seen  fit  to  attack  this 
bill  upon  the  floor  of  this  Convention,  proposes,  or  the  committee, 
some  portion  of  it,  proposes,  as  soon  as  the  $500  limit  is  reached,  or 
that  portion  of  the  article,  to  move  to  restore  the  $500  limit,  in  order 
that  the  Court  of  Appeals  of  seven  members  may  do  the  work. 
Now,  I  think  that  the  Court  of  Appeals,  as  I  said  before,  with 
seven  members,  cannot  do  it;  and  if  it  is  reduced  to  seven,  then 
I  agree  that  the  $500  limit  ought  to  be  restored. 

Mr.  Countryman  —  Mr.  Chairman,  will  the  gentleman  allow  me 
to  ask  him  a  question?  Do  I  understand  him  to  say  that  a  mem- 
ber of  the  Judiciary  Committee  has  stated  that  he  would  move, 
to  strike  out  that  provision  for  the  purpose  of  enabling  seven 
judges  to  do  the  work,  or  for  any  other  purpose? 

Mr.  McLaughlin  —  What  I  said,  Mr.  Chairman,  or  what  I 
intended  to  say  was  this:  that  I  understood  that  a  member  of  the 
Judiciary  Committee  had  said  that  a  motion  would  be  made,  when 
this  portion  of  the  article  was  reached,  to  restore  the  $500  limit. 

Mr.  Marshall  —  May  I  ask  the  gentleman  a  question? 

The  Chairman  —  You  cannot  ask  but  very  few. 

Mr.  Marshall  —  My  question  is,  whether  the  gentleman  means 
to  intimate  that  I  said  that  I  would  make  any  such  motion  as  that 
on  the  floor  of  the  House? 

Mr.  McLaughlin  —  I  do  not  accuse  any  member  of  saying  that. 

Mr.  Nicoll  —  Perhaps  the  question  arises  from  the  fact  that  it 
ought  to  be  made.  That  will  dispose  of  that. 

Mr.  McLaughlin  —  If  anybody  will  confess  —  I  have  not  accused 
anybody.  I  simply  say  what  is  asserted  on  this  floor.  When  we 
reach  that  portion  of  the  article  we  can  determine  whether  it  is  true 
or  not.  Now,  I  hope  this  will  pass. 

The  Chairman  put  the  question  on  the  motion  of  Mr.  McLaugh- 
lin, to  reconsider,  and  it  was  determined  in  the  negative  by  a  rising 
vote,  64  to  83. 

The  Chairman  —  Are  there  any  further  amendments  to  section  7 
of  this  proposition?  If  the  Chair  hears  none,  the  Secretary  will 
read  section  8. 

Mr.  O'Brien  —  How  about  Mr.  Doty's  amendment  to 
Mr.  Dickey's  amendment? 


1088  REVISED  RECORD.  [Wednesday, 

The  Chairman  —  Mr.  Doty's  amendment  to  Mr.  Dickey's  amend- 
ment falls  with  it. 

The  Secretary  read  section  8  as  follows: 

"  Sec.  8.  When  a  vacancy  shall  occur,  otherwise  than  by  expira- 
tion of  term,  in  the  office  of  chief  or  associate  judge  of  the  Court 
of  Appeals,  the  same  shall  be  filled,  for  a  full  term,  at  the  next 
general  election  happening  not  less  than  three  months  after  such 
vacancy  occurs ;  and  until  the  vacancy  shall  be  so  filled,  the  Governor, 
by  and  with  the  advice  and  consent  of  the  Senate,  if  the  Senate 
shall  be  in  session,  or,  if  not  in  session,  the  Governor  may,  by 
appointment,  fill  such  vacancy.  If  any  such  appointment  of  chief 
judge  shall  be  made  from  among  the  associate  judges,  a  temporary 
appointment  of  associate  judge  shall  be  made  in  like  manner;  but 
.in  such  case,  the  person  appointed  chief  judge  shall  not  be  deemed 
to  vacate  his  office  of  associate  judge  any  longer  than  until  the 
expiration  of  his  appointment  as  chief  judge.  The  powers  and 
jurisdiction  of  the  court  shall  not  be  suspended  for  want  of  appoint- 
ment or  election,  when  the  number  of  judges  is  sufficient  to  con- 
stitute a  quorum.  All  appointments  under  this  section  shall 
continue  until  and  including  the  last  day  of  December  next  after 
the  election  at  which  the  vacancy  shall  be  filled." 

The  Chairman  —  Are  there  any  amendments  to  section  8? 

Mr.  Root  —  Mr.  Chairman,  let  me  say  that  section  8  is  the  sec- 
tion as  it  stands  in  the  present  Constitution. 

The  Chairman  —  If  there  are  no  amendments  to  this  section,  the 
Secretary  will  read  section  9. 

The  Secretary  read  section  9  as  follows : 

Sec.  9.  After  the  last  day  of  December,  1895,  the  jurisdiction  of 
the  Court  of  Appeals  (except  where  the  judgment  is  of  death)  shall 
be  limited  to  the  review  of  questions  of  law.  No  unanimous  decision 
of  the  Appellate  Division  of  the  Supreme  Court  that  there  is  evi- 
dence supporting  or  tending  to  sustain  a  finding  of  fact  or  a  verdict 
not  directed  by  the  court,  shall  be  reviewed  by  the  Court  of  Appeals. 
Except  where  the  judgment  is  of  death,  appeals  shall  be  taken  to 
said  court  only  from  judgments  or  orders  entered  upon  decisions 
of  the  Appellate  Division  of  the  Supreme  Court,  finally  determining 
actions  or  special  proceedings,  and  from  orders  granting  new  trials 
on  exceptions,  where  the  appellants  stipulate  that  upon  "affirmance 
judgment  absolute  shall  be  rendered  against  them. 

The  Appellate  Division  in  any  department  may  allow  an  appeal 
in  any  case  which,  in  its  opinion,  involves  a  question  of  law  which 
ought  to  be  reviewed  by  the  Court  of  Appeals. 


August  22.]  CONSTITUTIONAL  CONVENTION.  1089 

The  Legislature  may  further  restrict  the  jurisdiction  of  the  Court 
of  Appeals  and  the  right  of  appeal  thereto,  but  it  shall  never  make 
the  right  to  appeal  depend  upon  the  amount  involved. 

The  provisions  of  this  section  shall  not  apply  to  orders  made  or 
judgments  rendered  by  any  General  Term  before  the  last  day  of 
December,  1895,  but  appeals  therefrom  may  be  taken  under  exist- 
ing provisions  of  law. 

Mr.  Crosby  —  Mr.  Chairman,  I  offer  the  following  amendment 
to  this  section: 

The  Secretary  read  the  amendment  of  Mr.  Crosby  as  follows: 
In  line  22,  page  7,  after  the  word  "death,"  insert  the  words  "or 
imprisonment  for  life." 

Mr.  Crosby  —  Mr.  Chairman,  I  have  been  informed  that  the 
Judiciary  Committee  made  the  exception  which  is  included  in  this 
section,  because  the  Legislature  has  already  provided  that,  in  order 
to  secure  a  speedy  review  and  a  just  administration  of  the  law,  an 
appeal  may  be  taken  in  capital  cases  direct  from  the  Oyer  and 
Terminer  to  the  Court  of  Appeals.  In  that  case,  the  court  has  the 
power,  under  certain  circumstances,  to  review  the  facts  the  same 
as  the  General  Term  of  the  Supreme  Court  might  have  done,  had 
the  appeal  been  taken  to  that  court.  The  exception,  which  is  made 
in  this  section  by  the  committee,  only  relates  to  a  case  where  the 
judgement  and  sentence  are  for  death.  The  amendment,  which 
I  propose,  gives  the  defendant  the  right  to  have  his  case  reviewed 
by  the  appellate  court,  the  court  of  last  resort,  when,  by  operation 
of  law,  his  sentence  makes  him  civilly  dead.  I  hope,  Mr.  Chairman, 
the  members  of  this  committee  will  not  vote  hastily  upon  this  ques- 
tion, but  will  consider  the  situation  of  one  who  is  sentenced  to 
imprisonment  for  life. 

By  section  708  of  the  Penal  Code,  it  is  provided  that  a  person 
sentenced  to  imprisonment  for  life  is  thereafter  deemed  civilly  dead. 
The  Court  of  Appeals,  in  Avery  v.  Everett  (no  N.  Y.,  332),  has 
defined  the  disabilities  flowing  from  this  statute,  and  I  can  do  no 
better  than  to  read  from  the  opinion,  calling  the  attention  of  this 
Convention  to  those  disabilities  briefly:  "The  statute,  without 
expressly  declaring  this  result,  assumes  that  a  life  sentence  of  a 
husband  ipso  facto  dissolves  his  marriage.  The  convict  cannot  sue, 
although  he  may  be  sued,  and  his  property  is  answerable  to  his 
creditors.  He  cannot  enter  into  executory  contracts  and  call  in  aid 
the  courts  to  enforce  them.  His  political  rights  are  taken  from 
him.  His  wife  and  children  owe  him  no  fealty  or  obedience." 
69 


loyo  REVISED  RECORD.  [Wednesday, 

If  this  provision  is  adopted  as  it  comes  from  the  committee,  the 
man  convicted  for  and  sentenced  to  imprisonment  for  life,  shut  out 
during  the  remainder  of  his  life  from  the  whole  world,  deprived 
by  the  statute  of  the  right  which  the  law  has  heretofore  given, 
relating  to  his  domestic  affairs,  his  wife  having  the  right  to  marry, 
his  children  having  the  right  to  repudiate  the  relation  which  they 
owe  and  bear  to  him,  prohibited  by  statute,  in  case  the  Governor 
pardons  him  from  being  restored  to  his  marital  relations,  prohibited 
by  law  from  being  the  guardian  of  his  children  or  having  any 
control  over  them,  has  certainly  a  right  to  an  appeal  to  the  court 
of  last  resort. 

i  ask  the  gentlemen  of  this  Convention,  when  we  are  drifting 
along  so  smoothly,  adopting  one  proposition  after  another,  to  stop 
for  a  moment  and  consider  the  misapplication  made  by  the  commit- 
tee of  this  statute  which  gives  the  right  of  appeal.  Instead  of  fol- 
lowing that  statute,  instead  of  giving  the  defendant,  the  prisoner, 
the  remedy  of  a  speedy  appeal  and  a  review  of  his  case  in  the 
court  of  last  resort,  which  the  Legislature  has  seen  fit  to  provide 
for  him,  the  amendment  recommended  by  the  committee  will 
deprive  him  of  the  right  which  the  statute  secures.  Now,  I  trust, 
Mr.  Chairman,  that  the  right  of  appeal  will  be  accorded.  Although 
a  man  is  absolutely  deprived  of  all  civil  rights,  of  all  domestic  rights, 
of  all  property  rights,  except  the  right  to  hold  the  title  to  his  prop- 
erty, and  in  that  regard  the  law  providing  that  he  cannot  manage 
it,  but  must  have  a  trustee  put  over  it  for  its  management,  without 
the  right  to  prosecute  in  any  court  to  prevent  infringement  of  his 
property  rights,  we  are  asked  now  to  adopt  this  provision  and 
thereby  deprive  him  of  the  right  of  review  of  the  facts  in  the  court 
of  final  resort. 

Mr.  Nicoll  —  Mr.  Chairman,  may  I  ask  the  gentleman  a  question? 
Is  it  intended  by  this  amendment  to  deprive  a  person  convicted  and 
sentenced  to  imprisonment  for  life,  of  his  right  of  intermediate 
appeal?  Do  you  intend  to  deprive  him  of  his  right  to  appeal,  to  go 
to  the  Appellate  Division  and  compel  him  to  go  as  men  sentenced  to 
death  now  go,  directly  to  the  Court  of  Appeals? 

Mr.  Crosby  —  Mr.  Chairman,  if  there  is  any  object  in  the  propo- 
sition proposed  by  the  committee,  to  limit  the  right  of  appeal, 
except  as  appears  upon  the  face  of  the  section,  then  I  think  we 
should  examine  the  matter  more  carefully. 

The  object,  as  stated  in  the  report  made  by  the  committee  to  the 
Convention,  and  in  the  discussion  of  this  matter  in  this  committee, 
is  to  lessen  the  .labor  of  the  Court  of  Appeals  by  preventing  a  review 
of  any  question  of  fact  in  that  court.  That,  I  understand,  to  be  the 


August  22.]  CONSTITUTIONAL  CONVENTION.  1091 

broad  proposition  upon  which  this  Judiciary  Committee  has  planted 
itself,  to  make  the  review  of  all  questions  of  fact,  except  in  one  single 
instance,  depend  upon  the  appellate  branch  of  the  Supreme  Court, 
and  make  the  Court  of  Appeals  purely  a  court  to  pass  upon  questions 
of  law.  Now  that  single  exception,  as  I  read  the  article  —  and  if  it 
is  not  as  I  read  it  it  ought  to  be  amended  so  that  an  ordinary  man 
can  understand  it  —  is,  "where  the  judgment  is  of  death."  There 
the  Court  of  Appeals  may  review  the  facts,  as  it  may  now,  under  the 
statute  as  it  is.  The  amendment  which  I  propose  has  nothing  to  do 
with  the  practice  on  appeals.  It  does  not  attempt  to  regulate  it, 
but  it  says  the  Court  of  Appeals  may  review  the  facts  where  the 
the  judgment  is  imprisonment  for  life,  simply  including  that  other 
case. 

Mr.  Marshall  —  Mr.  Chairman,  lest  there  should  be  a  misunder- 
standing by  the  Convention  on  this  point,  I  think  it  should  be  stated 
that  it  was  the  purpose  of  the  committee  to  lay  down  a  general  rule 
which  would  prohibit  a  review  of  the  facts  by  the  Court  of  Appeals. 
We  found,  however,  that  the  statutes  were  such  that  one  very 
important  class  of  cases  had  to  be  provided  for,  and  that  was  the 
case  where  there  was  a  conviction  of  a  crime  which  was  punishable 
by  death.  There  was,  under  our  statute,  no  right  of  review  except 
by  the  Court  of  Appeals  upon  a  conviction  which  resulted  in  a  sen- 
tence to  death.  It  is  necessary  to  go  directly  from  the  trial  court 
to  the  Court  of  Appeals,  and  therefore  there  is  no  right  of  review, 
either  in  the  General  Term  or  by  the  Appellate  Division,  which  has 
been  created  by  this  article.  Hence,  it  was  necessary  to  provide  for 
the  review  of  questions  of  fact  in  the  Court  of  Appeals  in  those  cases; 
but,  in  a  case  where  the  sentence  is  imprisonment  for  life,  there  is  a 
right  of  review  on  the  facts  at  the  General  Term  now,  and  in  the 
Appellate  Division  as  now  constituted,  and,  therefore,  there  is  no 
reason  why  there  should  be  a  second  review  of  the  facts  in  such 
case  in  the  Court  of  Appeals.  Hence,  the  use  of  the  words  which 
were  inserted  in  section  9. 

Mr.  Crosby  —  Mr.  Chairman,  there  seems  to  be  some  misunder- 
standing in  regard  to  the  situation  of  this  right  to  appeal.  I  repeat, 
that  there  may  be  no  misunderstanding,  that  the  object  of  the 
Legislature  was,  on  the  one  hand,  to  give  the  man  who  was  sen- 
tenced to  capital  punishment  the  right  to  review  speedily  by  the 
Court  of  Appeals  without  the  delay  of  the  General  Term,  on  the 
other  hand,  to  give  the  people  the  right  to  prevent  delays  and 
secure  a  final  determination  in  the  Court  of  Appeals.  As  the  law 
stands,  where  the  sentence  is  imprisonment  for  life,  the  right  of 
appeal  to  the  General  Term  is  given,  and,  as  the  gentleman  has  just 


1092  REVISED  RECORD.  [Wednesday, 

said,  it  will  remain.  The  objection  is,  and  it  must  be  apparent  to 
every  one,  that  while  the  right  of  appeal  to  the  General  Term 
remains,  this  provision  of  the  Constitution  as  reported  by  the  com- 
mittee, if  adopted,  will  deprive  a  man  who  is  shut  out  from  all  the 
world,  with  all  privileges  which  he  has  enjoyed  as  a  citizen  cut  off,  of 
the  right  of  appealing  to  the  court  of  last  resort  and  of  obtaining 
a  review  therein,  the  same  as  he  might  have  done  if  he  had  been 
convicted  of  the  offense  of  murder  in  the  first  degree.  My  conten- 
tion is  that  we  should  add  to  the  words  that  already  appear  in  the 
exception  made  by  the  committee,  the  words  "  where  the  punish- 
ment is  for  imprisonment  for  life,"  so  that  the  defendant,  who  is 
civilly  dead,  will  not  only  have  the  right  which  he  now  has,  of  going 
to  the  Appellate  Division  of  the  Supreme  Court,  but  will  have  the 
same  right  to  appeal  to  the  Court  of  Appeals  as  he  would  have  had 
if  the  punishment  was  death. 

Mr.  Foote  —  Mr.  Chairman,  may  I  ask  the  gentleman  a  question  ? 
Is  it  the  opinion  of  the  gentleman  from  Delaware  (Mr.  Crosby), 
that  a  person  convicted  of  an  offense  punishable  by  imprisonment 
for  life  should  have  two  reviews  upon  appeal  of  the  questions  of  fact, 
while  a  person  convicted  of  an  offense  punishable  with  death, 
should  have  only  one  review  of  the  questions  of  fact? 

Mr.  Crosby  —  Mr.  Chairman,  I  have .  said  that  the  Court  of 
Appeals  has  been  given,  by  the  Legislature,  the  first  hearing  from 
the  Oyer  and  Terminer  in  capital  cases  that  there  may  be  speedy 
justice  and  a  final  determination  in  the  court  of  last  resort.  To-day 
the  man  that  is  convicted  of  murder  in  the  second  degree,  the  pun- 
ishment for  which  is  imprisonment  for  life,  has  his  appeals  all  the 
way  from  the  Oyer  and  Terminer  through  the  General  Term  and  to 
the  Court  of  Appeals.  This  amendment  as  it  stands  will  deprive 
him  of  that  right. 

Mr.  Foote  —  Mr.  Chairman,  does  the  gentleman  understand  that 
the  question  of  fact  upon  such  an  appeal  may  now  be  reviewed  in 
the  Court  of  Appeals? 

Mr.  Crosby  —  Under  certain  circumstances  it  may,  sir.  The 
question  whether  or  not  the  proof,  as  it  has  been  presented  to  the 
court  at  the  trial  term,  establishes  the  fact,  whether  upon  all  the 
testimony  offered  upon  the  trial  the  people  have  established  the 
material  fact  upon  which  the  conviction  has  been  sustained,  may  be 
reviewed,  and  the  committee  seeks  to  cut  that  off. 

Mr.  Root  —  Mr.  Chairman,  I  beg  the  gentlemen  of  the  Conven- 
tion not  to  consider  this  question  as  if  it  were  a  question  of  appeal- 
ing from  the  present  General  Term.  If  we  do  anything  in  this 


August  22.]  CONSTITUTIONAL  CONVENTION.  1093 

article,  we  constitute  tribunals  for  the  review  of  judgments  such  as 
those  the  gentleman  refers  to,  amply  competent  to  review  all  ques- 
tions of  fact.  If  we  make  this  enlargement  now,  we  start  on  the 
same  career  by  which  the  Legislature  has  overwhelmed  the  Court  of 
Appeals  by  adding  instance  after  instance  in  which  the  people  may 
go  to  it.  The  only  thing,  Mr.  Chairman,  I  believe,  which  justifies 
making  any  exception  to  the  proper  logical  line  of  demarcation 
between  the  two  courts,  one  constituted  to  settle  the  law,  and  the 
other  constituted  to  review  the  facts,  is  the  sacredness  of  human  life; 
and  in  regard  to  that  we  have  proposed  to  perpetuate  the  exception 
which  is  made  by  the  present  statute  of  the  State.  I  hope  the 
amendment  will  not  prevail. 

Mr.  Blake  —  Mr.  Chairman,  I  desire  to  say  a  single  word.  Mr. 
Foote  has  asked  whether  the  Convention  would  give  to  the  man 
who  is  convicted  of  murder  in  the  second  degree  two  reviews  of 
the  facts,  while  he  who  is  convicted  of  murder  in  the  first  degree  has 
but  one.  But,  Mr.  Chairman,  the  man  who  is  convicted  of  murder 
in  the  first  degree  has  a  review  of  the  facts  in  the  court  of  last  resort, 
and  you  propose  to  shut  out  from  the  court  of  last  resort  the  man 
who  is  convicted  of  murder  in  the  second  degree.  Why  should  he 
not  have  a  right  to  a  review  of  the  facts  by  the  court  of  last  resort? 

Mr.  Marshall  —  Mr.  Chairman,  may  I  answer  the  gentleman's 
question?  The  reason  is,  that  under  our  law  he  has  no  review  of 
the  case  except  in  the  Court  of  Appeals  on  either  fact  or  law.  He 
must  go  directly  from  the  trial  court  to  the  Court  of  Appeals  in  a 
capital  case,  and  now,  under  this  provision,  we,  therefore,  preserve 
that  right  of  review  of  the  facts  necessarily  in  the  Court  of  Appeals ; 
while,  in  the  case  where  the  punishment  is  imprisonment  for  life,  he 
has  his  review  of  the  facts  in  the  General  Term  or  the  Appellate 
Division,  and  can  still  go  to  the  Court  of  Appeals  upon  questions  of 
law  which  have  arisen  in  the  case. 

Mr.  Blake  —  Mr.  Chairman,  the  gentleman  misconceives  my 
argument.  I  find  no  fault  because  you  grant  the  man  convicted  of 
murder  in  the  first  degree  a  review  of  the  facts  in  the  court  of  last 
resort  under  the  laws  as  they  exist  at  present.  But  what  I  find 
fault  with  is,  that  when  you  give  to  a  man  convicted  of  murder  in 
the  second  degree  the  right  to  a  review  of  the  facts  in  the  General 
Term,  as  you  call  it,  or  the  new  court  that  you  propose  to  create, 
you  shut  him  out  from  a  review  of  the  facts  in  the  court  of  last 
resort  and  I  think  that  unfair  and  unsound.  Of  course,  I  do  not 
wish  to  occupy  the  time  of  this  body,  because  in  the  discussion  upon 
the  question  of  capital  punishment  I  expressed  myself  at  consider- 


IOQ4  REVISED  RECORD.  [Wednesday, 

able  length,  and  the  Convention  knows  very  well  what  my  views 
are  on  that  subject.  I  contend,  sir,  that  liberty  is  dearer  than  life. 
When  you  deprive  a  man  of  his  liberty  for  his  lifetime,  you  sentence 
him  to  the  most  terrible  punishment,  and  it  occurs  to  me  that  the 
amendment  proposed  by  Mr.  Crosby  is  perfectly  sound  in  principle. 
The  man  whom  you  would  deprive  of  liberty  for  his  natural  life 
should  have  a  right  to  a  review  of  the  facts  in  the  very  highest 
court  known  to  our  laws.  I  admit  that  you  must  draw  the  line 
somewhere.  I  would  not  give  to  a  man,  sentenced  to  a  term  of 
imprisonment  for  five  or  ten  or  twenty  years,  the  right  of  appeal  to 
that  court,  but  it  does  occur  to  me  that  as  liberty  is  as  dear  as  life, 
when  it  becomes  a  question  of  deprivation  of  liberty  to  a  person  for 
his  natural  life,  that  right  ought  to  be  granted  to  him.  Further- 
more, Mr.  Chairman,  it  has  been  shown  here  by  statistics  that  there 
are  not  so  many  cases  arising  in  our  State  that  we  should  shut  this 
man  out  from  the  right  to  a  review  of  the  facts  in  the  court  of  last 
resort.  I  think  the  number  was  some  fifty-five  of  those  who  were 
convicted  of  murder  in  the  second  degree  during  a  period  of  five 
years,  from  1879  to  1884.  It  seems  to  me,  therefore,  that  the 
amendment  offered  by  the  gentleman  is  perfectly  sound  in  principle, 
and  that  it  is  in  the  interest  of  justice  and  humanity. 

Mr.  Crosby  —  Mr.  Chairman,  I  call  for  a  division  of  the 
committee. 

The  Chairman  put  the  question  on  the  adoption  of  Mr.  Crosby's 
amendment  and  it  was  determined  in  the  affirmative  by  a  rising 
vote,  56  to  48. 

Mr.  O'Brien  —  Mr.  Chairman,  I  offer  an  amendment  to  this 
section. 

Mr.  Platzek  —  Mr.  Chairman,  I  voted  in  the  affirmative  upon  the 
amendment  offered  by  Mr.  Crosby,  and  I  desire  to  follow  a  prece- 
dent that  has  been  established,  and  move  to  reconsider  the  vote. 

The  Chairman  —  The  question  is  on  the  motion  of  the  gentleman 
from  New  York,  Mr.  Platzek,  to  reconsider  the  vote  just  taken. 

Mr.  Veeder  —  Mr.  Chairman,  I  move  to  lay  that  motion  upon  the 
table. 

The  Chairman  —  The  gentleman  is  out  of  order. 

Mr.  Platzek  —  Mr.  Chairman,  I  have  been  better  advised,  and  I 
ask  leave  to  withdraw  my  motion  to  reconsider. 

The  Chairman  —  The  leave  is  granted. 

The  Secretary  read  Mr.  O'Brien's  amendment  as  follows: 

To  amend  section  nine  by  striking  out  the  word  "  but "  in  line 


August  22.]  CONSTITUTIONAL  CONVENTION.  1095 

twelve  on  page  eight,  and  all  thereafter  down  to  and  including  the 
word  "  involved  ''  in  line  fourteen. 

Mr.  O'Brien  —  Mr.  Chairman,  it  is  with  considerable  diffidence 
that  I  introduce  this  amendment,  and  I  would  not  think  of  doing  so 
were  it  not  in  furtherance  of  the  general  scheme  of  the  Committee 
on  Judiciary  as  I  understand  it.  The  object  of  this  amendment  is 
to  strike  out  that  provision  which  prohibits  the  money  limitation. 
I  believe  that  the  provision  is  an  unwise  one,  and  that  it  should  be 
left  to  the  Legislature  to  make  a  money  provision  upon  appeal,  if 
the  Legislature  shall  find  best  so  to  do  in  its  wisdom.  I  was  very 
much  impressed  by  the  remark  of  the  chairman  of  the  Judiciary 
Committee  when  he  said  that  a  single  appeal  was  all  that  a  man  was 
entitled  to.  I  believe  that  when  five  judges  have  passed  deliberately 
upon  a  matter  of  law  and  upon  a  matter  of  fact,  if  you  please,  and 
that  has  been  fairly  considered,  that  that  should  end  the  con- 
troversy; and  if  I  had  my  way,  there  would  be  no  such  thing  as  a 
Court  of  Appeals  in  this  State.  The  Court  of  Appeals  should 
exist  only  for  the  purpose  of  harmonizing  the  law,  and  there  should 
be  no  appeal  whatever  to  the  Court  of  Appeals,  except  where  there 
was  a  difference  of  opinion  in  the  General  Terms.  I  believe 
that  there  are  too  many  appeals  now.  I  believe  that  litigants 
are  driven  to  too  great  an  expense,  and  that  they  are  obliged 
to  chase  justice  too  far  and  too  long.  Now,  it  is  unknown  in 
other  States,  Mr.  Chairman  and  gentlemen  of  the  committee;  in 
the  other  States  of  this  Union,  when  a  man  has  made  his  single 
appeal,  he  must  rest  content  with  the  judgment  of  the  court.  He  is 
not  obliged  to  follow  on  to  another  tribunal.  Why,  I  have  prac- 
ticed law  in  a  State  in  this  Union  where  a  man  had  an  appeal  to  a 
court  consisting  of  three  judges,  and  no  matter  what  the  amount 
involved  might  be,  he  must  rest  content  with  the  decision  of  that 
tribunal,  and  people  were  just  as  well  satisfied  with  the  final  decision 
in  that  State  as  they  are  in  this  State  where  they  can  chase  along  up 
through  the  three  different  courts.  Mr.  Chairman  and  gentlemen, 
it  has  been  urged  in  some  of  the  arguments  upon  this  judiciary 
article  that  this  is  to  popularize  the  measure,  that  you  do  not  want  to 
remove  the  money  limitation,  that  if  you  take  that  off  the  people  will 
not  approve  the  article.  In  other  words,  that  the  common  people, 
the  working  people  of  the  State,  the  ordinary  plain  people,  want  to 
have  just  as  many  appeals  as  anybody  else  has.  Gentlemen,  I  do 
not  believe  any  such  thing.  I  do  not  believe  that  a  man  who  has  a 
fifty  or  a  hundred  dollar  suit  wants  to  have  the  right  to  travel  with 
it  through  the  three  courts.  I  do  not  believe  that  the  man  who  has 
a  small  amount  involved  cares  for  the  right  to  go  to,  and  above  all, 


1096  REVISED  RECORD.  [Wednesday, 

gentlemen,  he  does  not  care  to  have  the  right  of  some  wealthy 
suitor  to  drag  him  through,  the  courts  at  the  tremendous  expense 
which  is  entailed  under  our  infernal  system  of  procedure.  Why, 
gentlemen,  if  a  man  meets  with  a  wealthy  adversary  in  a  law- 
suit he  is  compelled  to  travel  with  that  adversary  just  as  far  as  he 
chooses  to  take  him.  A  few  months  ago  I  was  talking  with  the 
attorney  of  one  of  the  great  corporations  of  this  State,  and  he  spoke 
about  this  very  thing.  He  said  he  was  in  favor  of  every  man 
having  all  the  appeal  that  he  wanted;  let  the  poor  man  go  to  the 
Court  of  Appeals;  and  yet,  at  the  same  time  he  said  that  it  was  part 
of  the  rules  under  which  he  was  acting,  of  that  corporation  to  take 
every  case  up  just  as  far  as  it  could.  And  so,  in  that  way,  with  the 
purpose  and  for  the  object  of  frightening  away  the  poor  litigant  and 
of  compelling  him  to  a  settlement,  we  all  know  that  that  is  the  object 
ol  it,  we  all  know  that  it  is  the  ordinary  result  which  comes  from 
it.  Talk  about  this  being  a  poor  man's  measure.  Why,  it  is 
directly  in  the  interest  of  every  great  corporation  which  has  a  large 
number  of  suits.  I  think  that  so  far  from  being  a  measure  which  is 
calculated  to  popularize  this  proposed  Constitution,  it  is  one  which, 
when  the  people  come  to  give  it  their  sober  judgment,  will  aid 
more  than  any  other  in  condemning  it.  I  know  a  case  which  hap- 
pened a  short  time  ago,  where  there  was  not  more  than  fifty  dollars 
involved,  if  the  matter  could  have  been  fairly  sifted,  and  yet  a 
wealthy  litigant  upon  one  side  dragged  the  poor  man  through  to  the 
Court  of  Appeals,  and  at  the  end  of  it  compelled  him  to  pay  over  six 
hundred  dollars.  Is  that  a  measure  which  is  in  favor  of  the  poor 
man?  Is  that  a  measure  which  looks  to  establishing  justice  in 
favor  of  the  poor  as  against  the  rich  ?  I  say  it  is  exactly  the  reverse, 
and  that  unless  you  do  limit  this  matter  of  appeal,  you  will  place  the 
poor  litigant  at  the  mercy  of  the  rich.  You  will  force  him  to  settle- 
ments to  which  he  would  not  otherwise  consent,  and  you  will 
sometimes  frighten  him  away  from  bringing  a  suit  where  he  has 
good  and  substantial  cause  of  action. 

I  believe,  Mr.  Chairman  and  gentlemen,  with  the  man  from 
Brooklyn,  who  sat  in  the  Convention  in  1846;  he  was  a  workman, 
was  sent  here  by  the  workmen,  and  represented  the  workmen  of 
the  city  of. Brooklyn.  In  his  argument  in  regard  to  appeals,  he 
stated  that  if  a  man  could  afford  two  or  three  trials  and  two  or  three 
appeals,  that  he  was  taken  out  of  the  category  of  poor  men  and 
did  not  belong  there;  and  he  said,  speaking  for  the  common  people 
of  the  State,  that  he  did  not  want  more  than  one  appeal,  and  that 
so  far  as  he  was  concerned,  he  opposed  it  as  vigorously  as  he  knew 
how;  and  so  did  every  other  working  man  in  the  Convention.  And 


August  22.]  CONSTITUTIONAL  CONVENTION.  1097 

I  think  that  when  the  working  people  of  this  State  take  this  matter 
into  consideration,  they  will  find  that  it  is  one  of  the  features  of 
this  proposed  amendment  which  will  certainly  condemn  it. 

Mr.  Choate  —  Mr.  Chairman,  I  hope  that  this  and  any  other 
amendment  that  may  be  proposed  to  this  section  of  this  judiciary 
article  will  be  voted  down.  I  do  not  suppose-  that  any  section  of 
this  article  has  received  such  careful,  such  deliberate,  such  unani- 
mous assent  on  the  part  of  members  of  the  committee  as  this  has 
received.  I  dissent  entirely  from  the  gentleman  who  last  spoke 
upon  the  effect  of  this  provision.  In  a  long  experience  in  the  Court 
of  Appeals,  from  a  general  observation  of  their  decisions  as  pub- 
lished in  their  141  volumes,  I  venture  the  assertion  that  it  is  very 
rarely  indeed  that  a  corporation  appeals  to  the  Court  of  Appeals 
from  a  decision  involving  a  judgment  against  it  of  any  very  small 
amount;  or  that  corporations  will  hereafter  appeal  to  the  Court 
of  Appeals,  assuming  the  $500  limit  to  be  repealed  by  the  effect  of 
this  section,  from  judgments  involving  less  than  that  amount.  The 
effect,  on  the  contrary,  of  this  particular  provision,  is  that  this 
Convention  asserts  that  the  Court  of  Appeals  is  open  to  every  man, 
no  matter  how  small  is  his  case;  to  every  man,  no  matter  how  small 
his  fortune.  (Applause.)  Now,  we  had  this  subject  up  in  the  con- 
stitutional commission.  An  attempt  there  was  made  to  fix  a  limit 
beyond  even  the  $500,  below  which  no  suitor  should  be  permitted 
to  appeal  to  the  Court  of  Appeals.  It  was  condemned,  I  may  say, 
with  almost  entire  unanimity.  The  delegates  from  those  ^portions 
of  the  State,  where  the  bulk  of  litigations  was  in  the  average  very 
much  larger,  yielded  their  opinions  to  the  opinions  of  the  delegates 
from  the  more  rural  districts,  that  no  such  limitation  ought  to  be 
imposed.  I  call  the  attention  of  the  Convention  to  the  efficacy 
of  this  section  as  it  stands,  as  limiting  the  labors  of  the  Court  of 
Appeals,  taking  away  from  them  the  review  of  those  things  that 
are  not  questions  of  law,  that  never  were  questions  of  law,  but  were 
only  made  so  by  acts  of  the  Legislature.  There  is  every  provision 
in  it  which  is  ample  for  the  protection  of  suitors.  In  this  right 
of  the  Legislature  to  restrict  jurisdiction,  except  in  this  one  par- 
ticular, and  in  the  power  of  the  Appellate  Division  to  order  an 
appeal  in  any  case  where  they  think  a  question  of  law  is  involved, 
there  is  what  seems  to  me  to  be  the  cardinal  virtue  of  this  whole 
article,  the  making  the  Court  of  Appeals  strictly  a  court  of  law  and 
not  of  fact,  and  I  hope  it  will  be  adopted  with  general  unanimity  by 
the  Convention. 

Mr.  Nicoll  —  Mr.  Chairman,  up  to  date,  the  Convention  has  dis- 
agreed with  that  part  of  the  committee's  report  which  provides  for 


1098  REVISED  RECORD.  [Wednesday, 

two  additional  judges.  To  that  extent  they  have  not  afforded  any 
relief  for  the  present  congested  condition  of  business  in  the  Court 
of  Appeals.  The  Convention  has  next,  by  its  last  vote,  increased  the 
present  business  of  the  Court  of  Appeals  by  giving  an  appeal 
directly  to  that  court  or  from  the  Appellate  Division  of  the  Supreme 
Court  upon  questions  of  fact;  that  is,  they  have  stated  by  their 
last  vote  that  the  Court  of  Appeals  in  this  State,  on  appeals  from 
judgments  for  imprisonment  for  life,  shall  have  the  same  power  of 
reviewing  the  facts  that  they  now  have  in  cases  of  judgments  where 
the  sentence  is  death.  I  am  in  favor,  as  a  principle  involved  in 
the  proper  administration  of  the  criminal  law,  of  that  proposition. 
I  see  no  reason  why  the  man  who  is  sentenced  to  imprisonment 
for  life  should  have  any  greater  privilege  than  the  man  who  is  sen- 
tenced to  death.  When  the  statute  which  wiped  out  the  inter- 
mediate appeal  in  cases  where  a  man  had  been  sentenced  to  death 
was  passed,  I  endeavored  to  have  included  in  that  statute  also  the 
cases  of  men  who  had  been  sentenced  to  imprisonment  for  life. 
That  statute  was  passed  for  the  benefit  of  the  community.  It  was 
designed  for  no  other  purpose  than  to  do  away  with  the  delays 
which  always  were  found  between  the  verdict  of  a  jury  and  the  final 
decision  of  the  Court  of  Appeals.  It  was  demanded  by  the  com- 
munity for  the  purpose  of  repressing  the  crime  of  murder,  and  no 
good  reason  can  be  found,  in  my  judgment,  why  men  who  are 
convicted  or  sentenced  to  punishment  of  imprisonment  for  life 
should  stand  on  any  better  footing  than  those  who  are  sentenced 
to  death.  Of  course,  the  effect  of  our  last  vote,  instead  of  assisting 
the  man  or  helping  the  man  who  is  sentenced  to  imprisonment  for 
life,  was  to  put  him  where  he  belonged,  in  the  same  category  with 
the  man  who  is  sentenced  to  death.  If  the  business  of  the  Court 
of  Appeals  is  to  be  still  further  increased,  and  if  no  extra  judges 
are  to  be  added,  what  are  we  to  do?  How  are  we  to  solve  the 
present  problem?  Shall  we  leave  it  alone?  We  have  now  stated 
that  in  two  important  particulars  there  shall  be  an  increase  in 
the  business  of  the  Court  of  Appeals.  I  think  that  there  are,  at 
least,  of  appeals  to  the  Court  of  Appeals  where  the  sentence  is 
imprisonment  for  life,  not  less  than  thirty  or  forty  a  year.  They 
are  much  more  numerous  than  cases  from  appeals  where  the  sen- 
tence is  death,  on  account  of  the  usual  disposition  of  juries  to 
render  such  a  compromise  verdict.  So  that  we  have  really  given 
them  thirty  or  forty  new  cases  a  year,  where  they  are  permitted 
to  go  over  the  whole  record  and  pass  anew  upon  the  questions  of 
fact,  and  we  have  also  given  them  practically  an  unlimited  review 
in  all  cases  under  $500.  Notwithstanding  that,  we  have  not  added 


August  22.]  CONSTITUTIONAL  CONVENTION.  1099 

one  single  judge  to  the  Court  of  Appeals.  In  that  situation  I  see 
no  hope  whatever,  unless  we  return  to  the  present  statutory  limit 
of  $500  which  is  involved,  I  understand,  in  Mr.  O'Brien's 
amendment. 

Mr.  Marshall  —  He  wipes  out  all  limitations. 

Mr.  Nicoll  —  Well,  even  if  he  wipes  out  all  limitations,  that 
simply  leaves  it  to  the  Legislature  to  leave  the  limitation  where 
it  is  to-day.  That  proposition  of  limiting,  by  amount,  of  appeals 
to  the  court  of  last  resort  is  thoroughly  imbedded  in  our  American 
jurisprudence.  Men  talk  of  it  as  hostile  to  the  genius  of  our  insti- 
tutions. This  is  absurd.  It  is  found  in  the  jurisprudence  of  the 
United  States;  it  is  found  in  the  jurisprudence  of  almost  every  other 
State  in  the  Union;  Missouri,  one  of  the  rock-ribbed  Democratic 
States,  has  a  $2,500  limitation,  and  prohibits  its  court  of  last  appeal 
to  be  addressed  in  any  case  of  less  importance.  Tennessee,  Ala- 
bama, Georgia,  almost  all  of  the  Southern  States,  have  some  money 
limitations.  And  my  judgment  is,  that  the  reason  for  it  is  because 
in  a  money  limitation  is  found  the  great  security  of  the  poor  and 
necessity  suitor.  Why,  how  many  thousands  and  thousands  of  men 
are  employed  by  the  great  manufacturing  and  transportation  com- 
panies of  this  State!  Howr  many  men  are  injured  by  them  every 
year!  Are  we  going  to  say  to  all  those  great  manufacturing  and 
transportation  companies  that  they  may  carry  every  suit  on  contract 
and  every  suit  sounding  in  tort,  to  a  court  of  last  resort?  Is  there 
no  limit?  Whenever  a  workman  sues  them  for  his  wages,  may  they 
go  to  the  Court  of  Appeals  with  the  issue,  providing  their  ingenious 
advocate  can  raise  some  question  of  law?  Should  we  say  that  upon 
every  verdict  for  two  or  three  or  four  hundred  dollars  damages  for 
negligence  they  may  carry  the  litigation  on  for  three  years  to  the 
court  of  last  resort?  And  yet  that  will  be  the  effect  if  that  limita- 
tion is  wiped  out.  No  greater  blow  can  be  struck  at  the  laboring 
classes  of  this  State  than  the  wiping  out  of  that  limitation,  and  no 
greater  mistake  can  be  made  when  we  strike  it  out,  than  to  sup- 
pose that  we  do  it  in  the  interest  of  the  poor  man,  and  against 
the  interest  of  the  rich.  The  rule  is  exactly  the  opposite,  the 
reverse  will  be  the  result,  and  we  will  not  only  have  done  that, 
but  we  will  have  left  our  court  of  last  resort  practically  without  any 
protection  whatever  from  the  deluge  of  small  suits  which  will 
increase,  rather  than  diminish,  the  present  condition  of  congestion. 

Mr.  E.  R.  Brown  —  Mr.  Chairman,  I  would  like  to  say  one  word 
in  reference  to  this  matter.  Many  suits  for  sums  under  $500  are 
for  the  wages  of  laboring  men.  The  jurisdiction  of  the  Supreme 


1 100  REVISED  RECORD.  [Wednesday, 

Court  extends  as  low  as  fifty  dollars.  The  costs  in  the  Supreme 
Court  are  approximately  a  hundred  dollars;  in  the  General  Term 
approximately  a  hundred  dollars;  in  the  Court  of  Appeals  approxi- 
mately a  hundred  dollars,  and  the  delay  in  the  Court  of  Appeals 
at  least  a  year  and  a  half  on  the  average.  How  can  these  men 
ever  get  their  dues  if  you  permit  this  limitation  to  be  removed? 
When  judgment  is  entered  up  against  the  corporation  that  owes 
them  for  their  salaries,  that  corporation  can  appeal  to  the  General 
Term  and  to  the  Court  of  Appeals.  I  am  opposed  to  the  present 
provision,  and  trust  that  the  amendment  of  the  gentleman  will 
prevail. 

The  Chairman  put  the  question  on  the  adoption  of  the  amend- 
ment of  Mr.  O'Brien,  and  it  was  determined  in  the  negative  by  a 
rising  vote,  52  to  78. 

The  hour  of  one  o'clock  having  arrived,  the  Convention  took  a 
recess  until  three  o'clock  in  the  afternoon. 


AFTERNOON   SESSION. 
Wednesday  Afternoon,  August  22,  1894. 

The  Constitutional  Convention  of  the  State  of  New  York  met 
pursuant  to  recess  in  the  Assembly  Chamber,  in  the  Capitol,  at 
Albany,  N.  Y.,  Wednesday,  August  22,  1894,  at  three  o'clock  P.  M. 

Vice-President  Alvord  called  the  Convention  to  order. 

The  Vice-President  —  The  chairman  of  the  Committee  of  the 
Whole,  Mr.  Acker,  will  please  resume  his  place. 

The  Chairman  —  The  Convention  is  still  in  Committee  of  the 
Whole  on  general  order  No.  45,  and  is  considering  section  9.  Are 
there  any  further  amendments  to  be  proposed  to  section  9? 

Mr.  Goodelle  —  Mr.  Chairman,  if  the  action  of  the  Convention 
in  regard  to  the  amendment  offered  by  Mr.  Crosby  is  to  stand  as  the 
work  of  this  Convention,  it  is  absolutely  necessary,  in  my  judgment, 
that  the  words  on  the  following  page 

Mr.  Meyenborg  —  I  rise  to  a  point  of  order.  There  is  no 
quorum  present.  I  think  the  Convention  ought  to  obey  its  own 
rules.  We  cannot  do  any  business  without  a  quorum.  I  insist 
upon  the  point. 

The  Chairman  directed  the  Secretary  to  take  a  count  in  order  to 
ascertain  if  a  quorum  was  present. 

The  Chairman  —  The  Secretary  reports  that  there  are  eighty- 
eight  members  present.  Mr.  Goodelle  may  proceed. 


August  22.]  CONSTITUTIONAL.  CONVENTION. 

Mr.  Goodelle  —  I  was  about  to  say,  Mr.  Chairman,  that  if  the 
amendment  which  was  offered  by  Mr.  Crosby,  and  which  has  been 
accepted  by  this  Convention,  is  to  stand  as  the  work  of  the  Con- 
vention, it  becomes  absolutely  necessary  in  my  judgment  to  amend 
line  i,  on  page  8,  by  striking  out  the  words  "  except  where  the  judg- 
ment is  of  death."  For  this  Convention  is  put  in  the  unique  posi- 
tion of  saying  that  the  man  who  is  convicted  of  a  crime,  the  penalty 
of  which  is  imprisonment  for  life,  shall  have  the  facts  in  the  case 
reviewed  by  two  courts,  the  General  Term  and  the  Court  of  Appeals, 
whereas  the  man  who  is  convicted  of  murder  in  the  first  degree  and 
sentenced  to  death  shall  have  the  facts  in  his  case  reviewed 
but  once.  I  do  not  like  to  propose  this  amendment  because 
it  seems  to  me  that  this  Convention  ought  not  to  be  satisfied  to  go 
before  the  people  with  the  proposition  that  was  incorporated  in,  or  the 
amendment  that  was  offered  to,  this  article  this  morning.  There  is 
nothing  in  the  logic  of  it,  as  it  seems  to  me,  which  should  address 
itself  to  any  member.  But,  as  I  said  before,  if  the  Convention  is  to 
remain  in  the  position  which  it  has  taken  upon  the  proposed  amend- 
ment, then  I  wish  to  move  that  amendment  —  that  the  words  in  the 
first  line  of  page  8,  "  except  where  the  judgment  is  of  death,"  be 
stricken  out. 

Mr.  Crosby  —  Mr.  Chairman,  I  move  to  amend  on  page  8,  line  I, 
by  inserting  after  the  word  "death"  the  words  "or  imprisonment 
for  life." 

The  Chairman  —  The  gentleman  will  put  his  motion  in  writing 
and  send  it  to  the  desk.  Gentlemen,  are  you  ready  for  the  question? 

Mr.  Roche  —  Mr.  Chairman,  what  is  the  question  now  before  the 
committee?  Is  it  on  Mr.  Crosby's  amendment? 

The  Chairman  —  Yes. 

Mr.  Crosby  —  I  have  the  amendment  ready. 

Mr.  Hawley  —  Mr.  Chairman,  may  I  inquire  what  was  the 
amendment  introduced  by  Mr.  Crosby  which  was  passed  this 
morning? 

The  Chairman  —  In  section  9,  line  22,  after  the  word  "  death," 
to  insert  "  or  of  imprisonment  for  life." 

Mr.  Hawley  —  That  is  the  amendment  which  he  offers  now,  is  it 
not? 

The  Chairman  —  No;  it  is  in  another  place.     The  Secretary  will 
read  the  amendment. 
The   Secretary  —  It  will   read,   if   Mr.    Crosby's   amendment  is 


H02  REVISED  RECORD.  [Wednesday, 

inserted  on  top  of  page  8,  in  line  i,  ''  Except  where  the  judgment  is 
of  death,  or  of  imprisonment  for  life,  appeals  shall  be  taken,"  etc. 

Mr.  Crosby  —  Mr.  Chairman,  the  object  of  the  amendment  is  to 
perfect  and  make  symmetrical  the  proposed  article  and  to  meet  the 
objection  that  was  raised  and  has  been  argued  against  the  amend- 
ment which  was  adopted  by  this  Convention.  As  this  Convention 
is  composed  of  lawyers  largely,  and  as  the  criticism  against  the 
amendment  which  was  adopted  was  made  by  lawyers,  I  trust  they 
will  meet  this  question  in  a  fair,  judicial  and  lawyer-like  manner. 
Now,  there  are  two  functions  of  law-making;  one  is  to  establish  the 
principles  of  elementary  law,  of  constitutional  law,  which  protect 
the  rights  of  individuals,  which  prohibit  the  Legislature  infringing 
upon  the  natural  rights  of  man,  which  throw  safeguards  around  the 
rights  of  person  and  of  property;  and  the  amendment  which  was 
adopted  this  morning  is  peculiarly  of  that  class.  It  is  an  elemen- 
tary principle  of  law,  laid  down  by  Coke,  that  there  are  three  things 
sacred  in  law :  Life,  liberty,  and  dower  —  liberty  standing  upon  an 
equal  plane  with  life.  This  amendment  simply  preserves  that  ele- 
mental principle  which  has  been  recognized  since  English  law  has 
been  written  or  discussed.  Now,  Mr.  Chairman,  it  is  unfair  to  seek 
to  deprive  the  people  of  the  right,  which  has  been  recognized  by 
the  common  law  and  by  the  statutory  law  as  well,  by  attempting 
to  confuse  elemental  principles  with  legislation. 

The  Legislature  of  the  State  of  New  York  has  the  right  to  pre- 
scribe the  Code  of  Procedure,  to  regulate  the  manner  of  appeal,  the 
methods  upon  which  reviews  may  be  had,  and  to  do  so  without  any 
violation  of  the  constitutional  prohibition.  It  did,  as  I  stated  this 
morning,  see  fit  to  protect  the  rights  of  both  parties  —  the  rights 
of  the  people,  the  prosecutors,  to  prevent  long  delays;  the  rights  of 
the  accused,  to  give  him  a  speedy  and  impartial  administration  of 
justice  by  permitting  him  to  resort  to  the  court  of  highest  authority, 
the  last  appellate  resort,  without  stopping  at  the  General  Term  and 
arguing  and  procuring  a  decision  there.  This  committee  has  seen 
fit  to  change  what  has  been  accorded  to  a  defendant  by  the  common 
law  and  by  statute  and  deprive  the  man  who  is  convicted  of  murder 
in  the  second  degree  and  sentenced  to  imprisonment  for  life,  of  the 
right  to  liberty  which  had  been  secured  to  him  before. 

Now,  I  ask  the  gentlemen  of  this  Convention  to  draw  the  line 
between  the  prohibitory  provision  of  the  fundamental  law,  which  we 
have  adopted,  and  the  right  and  authority  of  the  Legislature  to 
provide  a  course  of  practice.  If  it  be  deemed  advisable  by  the 
Legislature  to  require  the  defendant  who  is  sentenced  to  imprison- 
ment for  life  to  appeal  in  the  first  instance  to  the  Court  of  Appeals, 


August  22.]           CONSTITUTIONAL  CONVENTION.  1103 

or  if  it  be  deemed  advisable  by  the  law-making  power  to  give  that 
man  a  short  and  speedy  trial  and  hearing  in  the  Court  of  Appeals, 
so  that  he  need  not  be  incarcerated  during  the  delay  attending  the 
appeal  to  the  Supreme  Court  in  General  Term,  they  may  provide 
that  the  same  provisions  shall  govern  as  to  convictions  for  impris- 
onment for  life  that  are  now  the  law  in  cases  of  convictions  where 
the  punishment  is  death.  This  amendment  which  I  propose  pro- 
vides exactly  for  that  practice.  It  protects  the  people,  it  protects  the 
defendant,  if  the  Legislature  see  fit,  without  any  amendment  of  the 
Constitution,  and  as  I  should  urge  if  I  were  a  member  of  the  Legis- 
lature, it  may  give  the  right  and  require  the  defendant  to  go  imme- 
diately from  the  Trial  Term  to  the  Court  of  Appeals,  the  same  as  if 
he  was  convicted  and  sentenced  to  death. 

Gentlemen  of  the  Convention,  do  not  be  misled  against  this 
humane  principle,  this  right  which  has  been  accorded  as  long  as 
law  has  been  written,  this  right  which  is  protected  by  statute  to-day. 
Do  not  be  misled,  I  say,  by  this  argument  on  a  question  of  prac- 
tice, into  refusing  one  who  is  deprived  of  civil  liberty,  who  is 
deprived  of  all  his  civil  rights,  an  appeal  to  the  Court  of  Appeals,  by 
adopting  this  provision,  and  declining  to  make  this  amendment  to 
harmonize  the  language  of  this  section  of  the  proposed  amendment. 
As  I  said  before,  if  this  amendment  is  adopted  there  is  no  prohibi- 
tion upon  the  Legislature  requiring  one  convicted  and  sentenced  to 
imprisonment  for  life  to  go  directly  to  the  Court  of  Appeals. 

Mr.  Nicoll  —  Mr.  Chairman,  the  only  objection  to  the  amend- 
ment proposed  by  Mr.  Crosby  is  that  it  imposes  an  additional 
burden  upon  the  Court  of  Appeals  by  compelling  them  in  such 
cases  to  examine  the  voluminous  record  usually  printed  and  to  pass 
judgment  upon  the  facts. 

Mr.  Crosby  —  Will  the  gentleman  from  New  York  (Mr.  Nicoll) 
permit  me  to  ask  a  question? 

The  Chairman  —  I  think  the  dignity  of  this  debate  and  the  time 
that  the  committee  has  to  discuss  this  amendment  ought  to  prohibit 
the  interruption  of  gentlemen  while  making  speeches.  The  Chair 
will  have  to  rule  that  interruptions  are  out  of  order. 

Mr.  Crosby  —  It  is  a  question  of  privilege.  The  gentleman  from 
New  York  interrupted  me  while  I  was  speaking,  and  I  wish  now  to 
return  the  compliment  by  asking  him  a  question. 

The  Chairman  —  The  Chair  will  hold  that  the  gentleman  from 
New  York  (Mr.  Nicoll)  has  the  floor  and  must  not  be  interrupted. 

Mr.  Nicoll  —  I  had  the  honor  to  state  to  the  Convention  just 
before  recess  that,  in  view  of  the  refusal  of  the  Convention  to  allow 


1 104  REVISED  RECORD.  [Wednesday, 

nine  judges  in  the  Court  of  Appeals,  it  was  unwise,  if  we  desired  to 
relieve  the  present  congestion  of  the  calendar  of  that  court,  to  still 
further  increase  their  duties.  The  effect  of  this  amendment  is  still 
further  to  increase  the  business  of  the  Court  of  Appeals  by  making 
them  the  first  court  of  review,  in  murder  cases,  and  compelling  them 
to  award  judgment  upon  the  facts,  and  not  upon  the  law  alone. 
This  amendment  is  not  in  the  interest  of  the  criminal,  nor  for  the 
protection  of  his  rights.  I  believe  that  to  have  been  the  intention 
of  the  gentleman  who  offered  it.  He  undoubtedly  believes  that  it 
is  for  the  protection  of  the  liberty  and  the  rights  of  the  defendant  in 
a  criminal  case.  But  the  effect  of  it  is  exactly  the  opposite.  The 
effect  of  it  is  to  take  away  from  the  man  who  is  convicted  of  murder 
in  the  second  degree  one  of  his  appeals.  Up  to  a  few  years  ago  a 
man  convicted  of  murder  in  the  first  degree  had  two  appeals,  one  to 
the  General  Term,  and  a  second  to  the  Court  of  Appeals.  The 
General  Term  passed  upon  the  questions  of  fact  and  of  law;  the 
Court  of  Appeals  passed  upon  questions  of  law  only.  The  situation 
of  the  man  convicted  of  murder  in  the  first  degree  was  precisely  the 
same  as  that  of  the  man  convicted  of  murder  in  the  second  degree. 
Both  had  the  same  rights  of  appeal.  A  few  years  ago  the  statute 
was  amended  and  changed  in  regard  to  one  convicted  of  murder 
in  the  first  degree,  not  for  his  benefit,  but  for  the  purpose  of  a 
swifter  and  more  certain  administration  of  justice.  His  inter- 
mediate appeal  was  taken  away  from  him,  and  the  only  resort  left 
to  him  was  an  appeal  to  the  Court  of  Appeals.  But  in  order  that 
some  appellate  courts  might  be  constituted  to  review  questions  of 
fact  it  was  provided  that  the  Court  of  Appeals  in  that  case  might 
consider  both  questions  of  law  and  of  fact.  Now,  that  was  the 
condition  of  a  man  who  was  convicted  of  murder  in  the  first  degree. 
But,  under  the  present  law,  a  man  who  has  been  convicted  of 
murder  in  the  second  degree  has  two  appeals  —  one  to  the  Appel- 
late Division  of  the  General  Term,  and  one  to  the  Court  of  Appeals. 
There  may  be  good  reason  for  taking  that  intermediate  appeal  away 
from  one  convicted  and  sentenced  to  death,  but  taking  it  away  is 
not  in  his  interest,  nor  in  the  interest  of  the  liberty  of  the  citizen. 
We  thought  it  advisable  in  the  Judiciary  Committee  to  leave  the  law 
as  it  stands  to-day,  to  leave  a  man  convicted  of  murder  in  the  first 
degree  with  his  one  appeal  in  that  case,  by  giving  to  the  Court  of 
Appeals  power  to  pass  upon  the  facts ;  and  to  leave  to  the  man  con- 
victed of  murder  in  the  second  degree  his  two  appeals  —  leaving  it 
to  the  General  Term,  the  Appellate  Division,  to  pass  upon  the  facts, 
and  the  Court  of  Appeals  to  pass  only  upon  questions  of  law.  I  am 
opposed  to  this  amendment  because  the  effect  would  be  to  dump 


August  22.]  CONSTITUTIONAL  CONVENTION.  1105 

into  the  Court  of  Appeals  a  large  amount  of  business  by  compelling 
them  to  pass  upon  records  of  fact  in  cases  where  men  have  been 
convicted  of  murder  in  the  second  degree  —  which  would  greatly 
add  to  the  congestion  which  exists  there  now. 

Mr.  Crosby  —  Mr.  Chairman,  I  have  sat  during  this  discussion 
on  this  proposed  amendment  without  rising  to  speak  or  to  ask  any 
questions  until  this  section  now  in  question  has  come  under  discus- 
sion. In  view  of  the  ruling  of  the  Chair,  depriving  me  of  the  right 
to  ask  the  gentleman  from  New  York  a  question,  and  wishing  to 
observe  the  proper  decorum  towards  the  presiding  officer  of  this 
dignified  body,  I  now  inquire  if  it  is  proper  for  me  to  ask  the  gentle- 
man a  question  at  the  conclusion  of  his  remarks. 

The  Chairman  —  Certainly. 

Mr.  Crosby  —  Thanks.  Now,  will  the  gentleman  from  New 
York  (Mr.  Nicoll),  through  true  chairman,  answer  me  two 
questions? 

Mr.  Nicoll  —  Yes;  if  I  am  permitted  by  the  Chair. 

Mr.  Crosby  —  The  Chair  has  granted  the  privilege.  The  first 
question  is  this:  You  say  that  the  Judiciary  Committee  has  seen  fit 
to  give  two  appeals  to  the  man  convicted  of  crime  and  sentenced  to 
imprisonment  for  life.  What  are  they? 

Mr.  Nicoll  —  An  appeal  to  the  Appellate  Division  and  an  appeal 
to  the  Court  of  Appeals  on  questions  of  law. 

Mr.  Crosby  —  But  no  appeal  on  questions  of  fact? 

Mr.  Nicoll  —  Yes;  one  appeal  to  the  Appellate  Division. 

Mr.  Crosby  —  But  no  appeal  to  the  Court  of  Appeals  on  doubt- 
ful questions  of  facts? 

Mr.  Nicoll  —  No  appeal  to  that  court  on  questions  of  fact. 

Mr.  Crosby  —  Then  he  stands  exactly  the  same  as  a  defendant  in 
a  civil  action,  so  far  as  appealing  to  the  Court  of  Appeals  is  con- 
cerned. 

Mr.  Nicoll  —  He  stands  in  the  same  position  as  the  defendant  in 
civil  cases,  and  as  every  other  man  in  criminal  cases  stands,  except- 
ing a  man  convicted  of  murder  in  the  first  degree. 

Mr.  Crosby  —  And  yet  you  say  you  propose  to  leave  this  class  of 
cases  as  they  were  before.  As  it  stands  now  has  not  one  convicted 
of  murder  in  the  second  degree  and-  sentenced  to  imprisonment  for 
life  the  right  to  invoke  a  decision  of  the  Court  of  Appeals? 

Mr.  Nicoll  —  On  questions  of  fact,  no. 
TO 


II06  REVISED  RECORD.  [Wednesday, 

Mr.  Crosby  —  Has  he  not  the  same  right  of  appeal  to  the  Court 
of  Appeals  that  one  has  who  has  been  convicted  of  murder  in  the 
first  degree? 

Mr.  Nicoll  —  He  has  not  the  same  right.     There  is  a  difference. 

Mr.  Crosby  —  I  take  grave  issue  with  the  gentleman  from  New 
York  on  that  question;  and  I  trust  that  every  other  lawyer  in  the 
Convention  will  take  issue  also.  Has  he  not  a  right  to  appeal  to 
the  Court  of  Appeals? 

Mr.  Nicoll  —  A  man  convicted  of  murder  in  the  second  degree? 

Mr.  Crosby  —  Yes. 

Mr.  Nicoll  —  A  man  convicted  of  murder  in  the  second  degree 
now,  after  the  verdict  of  the  jury,  has  an  appeal  to  the  General 
Term. 

Mr.  Crosby  —  Has  he  not  an. appeal  to  the  Court  of  Appeals? 

Mr.. Nicoll  —  Not  on  questions  of  fact. 

Mr.  Crosby  —  Has  he  not  an  appeal  to  the  Court  of  Appeals  the 
same  as  if  convicted  of  any  other  crime?  That  is  the  question. 

Mr.  Nicoll  —  He  has  on  questions  of  law,  but  not  on  questions 
of  fact. 

Mr.  Crosby  —  I  say  that  he  has  the  same  right  of  appeal  to  the 
Court  of  Appeals  as  any  other  defendant  charged  with  lesser  crimes. 

Mr.  C.  H.  Truax  —  Mr.  Chairman,  I  am  quite  anxious  to  find  out 
what  rights  have  been  given  to  a  person  convicted  of  crime,  and 
sentenced  to  imprisonment  for  life,  by  the  proposed  amendment. 
I  would  like  to  ask  the  gentleman  to  state  what  rights  will  be  given. 

.  Mr.  Crosby  —  Is  it  proper  for  the  gentleman  from  New  York 
(Mr.  Truax),  to  ask  me  a  question? 

The  Chairman  —  It  is,  after  the  gentleman  from  Delaware  gets 
through  his  speech. 

Mr.  Crosby  —  I  desire  to  answer  the  question  now. 

The  Chairman  —  The  Chair  desires  to  have  one  thing  at  a  time. 
Whatever  the  member  has  in  his  mind,  let  him  state,  and  then  when 
he  is  through  let  him  answer  the  question. 

Mr.  Truax  —  I  would  like  to  ask  the  gentleman  that  question. 

Mr.  Crosby  —  I  will  answer  him  now  by  continuing  my  speech. 
I  propose  in  this  amendment  (this  Convention  having  granted  the 
right  of  appeal  by  its  amendment  to  this  article  adopted  this  fore- 
noon, if  the  people  of  the  State  of  New  York  see  fit  to  ratify  it)  to 
give  to  the  Legislature  the  right  to  require,  if  it  sees  fit,  that  the 
appeal  must  be  taken  in  the  same  way  as  appeals  are  taken  in  cases 


August  22.]  CONSTITUTIONAL  CONVENTION.  HO/ 

of  conviction  of  murder  in  the  first  degree.  It  is  only  permissive. 
Here  is  a  restriction  which  says  that  in  all  cases  except  one,  and 
that  is  in  cases  of  punishment  by  death,  or  "  where  the  judgment  is 
of  death,"  as  the  language  of  the  article  is,  in  all  cases  except  one, 
the  papers  upon  which  the  appeal  is  taken  must  be  so  and  so;  the 
appeal  must  be  based  upon  the  judgment.  I  will  say,  in  answer 
to  the  question  of  the  gentleman  from  New  York  (Mr.  Truax), 
that  this  amendment  says  that,  in  all  cases  except  two,  an  appeal 
shall  be  taken  thus  and  so.  That  is,  in  all  cases  except  sentence  of 
death,  and  in  all  cases  except  sentence  of  imprisonment  for  life,  the 
appeal  must  be  taken  from  "judgments  or  orders."  It  simply  adds 
this  other  case  to  the  exception,  leaving  the  whole  field  open.  But, 
more  than  that,  it  does  not  say  that  in  these  cases  the  appeal  must 
be  taken  in  that  way,  but  it  excepts  these  cases  from  the  rule,  and 
leaves  the  Legislature  the  right  to  prescribe  how  the  appeal  shall  be 
taken  in  these  two  cases. 

Mr.  Blake  —  May  I  inquire  what  is  the  question  now  before  the 
committee? 

The  Chairman  —  The  Secretary  will  state  it. 

The  Secretary  —  The  question  is  on  the  amendment  introduced 
by  Mr.  Crosby,  who  proposes  in  line  i,  on  page  8,  after  the  word 
"  death,"  to  insert  the  words  "  or  of  imprisonment  for  life,"  so  that 
it  will  read,  "  except  where  a  judgment  is  of  death  or  of  imprison- 
ment for  life,  appeals  shall  be  taken,"  etc. 

The  Chairman  —  Those  who  are  in  favor  of  the  motion  made  by 
Mr.  Crosby  will  please  say  aye. 

Mr.  Root  —  Mr.  Chairman 

The  Chairman  —  Those  opposed  will  say  no.  It  seems  to  be 
lost. 

Mr.  Crosby  —  I  call  for  a  count. 

The  Chairman  put  the  question  on  the  amendment  offered  by  Mr. 
Crosby,  and  by  a  rising  vote,  it  was  determined  in  the  negative  by  a 
vote  of  40  ayes  and  66  noes. 

The  Chairman  —  Are  there  any  further  amendments  to  this 
section. 

Mr.  Nicoll  —  I  move  to  reconsider  the  vote  by  which  the  amend- 
ment of  Mr.  Crosby  was  adopted  this  morning. 

Mr.  Crosby  —  I  move  to  lay  that  motion  on  the  table. 
Mr.  Nicoll  —  You  cannot  do  that  in  Committee  of  the  Whole. 
The  Chairman  —  The  Chair  rules  that  the  motion  to  lay  this 
motion  to  reconsider  on  the  table  is  out  of  order. 


H08  REVISED  RECORD. 

Mr.  Crosby  —  I  rise  to  a  question  of  privilege.  Did  not  the 
Chair  entertain  a  motion  last  night  on  appeal  from  his  decision,  and 
was  not  the  motion  put  by  the  Chair,  and  carried  by  this  Conven- 
tion, and  is  not  that  appeal  on  the  table  now? 

The  Chairman  — The  Chair  is  delighted  to  explain  that  question. 
This  is  the  third  time  it  has  had  to  answer  it.  Last  night,  as  I 
recollect  it,  the  President  of  this  Convention  moved  to  lay  an  appeal 
on  the  table.  I  never  saw  one  go  to  any  other  place,  and  as  long 
as  I  am  in  the  Chair  I  shall  so  rule  on  every  appeal.  But  in  no 
other  case  has  the  Chair  ruled  differently  from  what  it  does  now. 
The  question  is  upon  the  motion  to  reconsider  the  vote  by  which 
the  amendment  offered  by  Mr.  Crosby  to  section  9  was  passed. 
The  gentleman  from  New  York  (Mr.  Blake)  has  the  floor. 

Mr.  Blake  —  I  understand  that  the  motion  is  to  reconsider  the 
vote  which  was  taken  to-day? 

The  Chairman  —  Yes. 

Mr.  Blake  —  The  vote  which  was  taken  this  morning? 

The  Chairman  —  Yes. 

Mr.  Blake  —  On  the  adoption  of  Mr.  Crosby's  amendment? 

The  Chairman  —  Yes. 

Mr.  Blake  —  And  the  motion  is  to  reconsider  that? 

The  Chairman  —  Yes. 

Mr.  Blake  —  I  am  opposed  to  the  reconsideration  of  that  vote. 
It  strikes  me  that  as  something  has  been  done  here  in  twenty-four 
hours,  it  is  due  to  the  Convention  to  have  some  respect  for  its  own 
dignity,  and  let  that  action  stand.  It  seems  to  me  that  the  Conven- 
tion ought  to  be  of  one  mind  at  least  for  twenty-four  hours,  or,  if 
not  for  twenty-four  hours,  at  least  for  sixty  minutes.  This  com- 
mittee, by  a  large  majority,  decided  that  a  man  convicted  of 
murder  in  the  second  degree,  and  sentenced  to  be  deprived  of 
his  liberty  for  life,  should  have  one  chance  at  least;  that 
he  should  have  as  much  right  to  go  to  the  Court  of  Appeals, 
as  is  given  to  a  man  convicted  of  murder  in  the  first  degree, 
to  have  a  review  of  the  facts  by  that  court.  Why  should  he  not 
have  such  a  right?  It  not  liberty  sweet  to  all  of  us?  Is  not  liberty 
dear  to  all  of  us?  Is  there  a  man  in  this  Convention  who,  if  he  were 
innocently  convicted  of  murder  in  the  second  degree,  would  not  like 
to  have  his  one  chance  of  appeal?  I  say  that  it  is  not  fair,  it  is  not 
just,  it  is  contrary  to  the  rules  that  should  prevail  in  every  well- 
regulated  community,  it  is  contrary  to  law  and  justice,  that  it  should 
be  otherwise.  I  know  not  what  has  actuated  men  here  to  change 


August  22.]  CONSTITUTIONAL  CONVENTION.  1109 

their  votes,  if  any  have  changed  their  votes.  I  myself  did  not 
understand  the  last  question  put  to  this  committee.  I  did  not  know 
that  this  question  was  before  the  committee  in  time  to  vote  upon  it. 
Mr.  Chairman,  what  reason  is  there,  what  good  reason  has  been  or 
can  be  advanced,  why  a  man  who  has  been  convicted  of  murder  in 
the  second  degree  should  not  have  the  right  to  have  his  case 
reviewed  by  the  Court  of  Appeals?  The  gentleman  from  New 
York  (Mr.  Nicoll)  has  stated  that  there  would  be  some  thirty  or 
forty  appeals  taken  to  the  Court  of  Appeals  on  convictions  of 
murder  in  the  second  degree.  Why,  sirs,  the  figures  before  this 
body,  elicited  in  response  to  a  resolution  offered  by  myself,  and 
which  came  to  the  Convention  in  a  communication  from  the  Secre- 
tary of  State,  show  that  not  more  than  fifty-five  cases  of  con- 
viction of  murder  in  the  second  degree  have  occurred  in  the  last 
five  years.  That  was  at  the  rate  of  about  ten  or  eleven  convictions 
for  each  year.  How  many  of  those  cases  were  appealed  to  the 
Court  of  Appeals?  Not  more  than  one-fourth.  How  much  labor 
will  that  add  to  the  duties  and  the  work  of  that  court?  I  trust, 
gentlemen,  you  will  have  sufficient  respect  for  yourselves  to  recog- 
nize what  you  owe  to  this  body,  to  this  Convention  and  what  you 
owe  to  the  cause  of  justice  and  humanity,  to  stand  by  a  vote  when 
deliberately  taken  after  full  discussion.  That  appeal  was  made 
to  you  here  to-day  by  our  honored  President,  and  by 
other  gentlemen  in  this  body.  I  think  that'  you  will  heed 
it.  I  ask  you  what  good  reason  is  there,  what  has  occurred 
since  the  vote  was  taken,  which  should  lead  you  to  recon- 
sider it?  Has  the  whip  been  snapped  over  the  heads  of  gentlemen 
here  that  they  must  change  their  position  within  two  hours?  It 
seems  to  me  we  ought  to  have  more  respect  for  ourselves,  and  a 
higher  appreciation  of  the  importance  of  this  law  than  to  reverse  the 
action  taken  this  morning.  We  should  give  to  every  man  con- 
victed of  murder  in  the  second  degree  this  right  of  appeal.  Let  us 
not  deprive  him  of  his  natural  liberty,  and  take  from  him  the  right 
to  have  his  appeal  determined  by  the  highest  Court  of  Appeals  in 
the  State,  and  at  the  same  time  let  the  man  who  is  convicted  of  a 
lesser  offense,  and  who  is  sentenced  to  judgment  of  imprisonment 
for  five  or  ten  years,  and  who  may  reasonably  have  some  hope  or 
expectation  of  outliving  that  term  of  imprisonment,  enjoy  that  free- 
dom of  appeal.  But  not  so  with  the  man  who  is  sentenced  to 
imprisonment  for  his  natural  life.  Therefore,  I  say  give  him  this 
one  chance.  I  am  perfectly  satisfied  that  he  should  jump  into  this 
intermediate  court.  Let  it  be  so  if  you  will.  I  do  not  ask  that  he 
should  have  a  larger  measure  of  law  or  justice  than  the  man  who  is 


HIO  REVISED  RECORD.  [Wednesday, 

convicted  of  murder  in  the  first  degree,  but  I  ask  that  you  will  give 
him  a  judgment  and  a  decision  of  the  court  of  last  resort  on  his 
appeal.  It  seems  to  me  that  he  is  entitled  to  that.  I  do  not  wish 
to  unnecessarily  occupy  the  time  of  this  body,  but  I  appeal  once 
more  to  the  gentlemen  who  stood  up  here  this  morning  like  men,  as 
though  they  had  the  milk  of  human  kindness  in  them,  and  a  sense 
of  justice  in  their  hearts,  to  vote  to  give  the  man  that  right.  You 
vote  to  give  yourselves  this  right,  for  who  of  us  knows  it  may  not 
be  his  fate  to  be  innocently  accused  of  some  crime  of  this  gravity. 
And  so  I  appeal  to  you  to  stand  up  like  men  for  a  principle  when 
you  have  adopted  it,  and  not  shuffle  to  and  fro  in  this  way.  It 
seems  to  me  a  prostitution;  it  is  stultification,  a  self-imposed  stulti- 
fication for  us  to  do  otherwise.  Therefore,  Mr.  Chairman,  once 
again  I  appeal  to  the  members  of  this  body  to  stand  by  their  vote 
to-day,  and  to  give  to  a  man  who  is  deprived  of  his  liberty  for  his 
natural  life  at  least  one  chance  to  have  the  judgment  set  aside  if  any 
error  has  been  committed. 

Mr.  Nicoll  —  I  feel  very  certain,  Mr.  Chairman,  that  there  is 
some  misunderstanding  as  to  the  effect  of  this  amendment  by  some 
of  the  gentlemen  of  the  Convention.  This  morning  Mr.  Crosby 
moved  in  the  third  line  of  section  9,  which  says,  "  except  where  the 
punishment  is  of  death,"  to  include  the  words  "  or  imprisonment  for 
life."  Now,  let  us  see  what  is  the  effect  of  adding  the  words  "  or 
imprisonment  for  life  "  to  the  words,  "  except  where  the  judgment 
is  of  death."  It  is  to  say  that  "  after  the  last  day  of  December,  1895, 
the  jurisdiction  of  the  Court  of  Appeals  (except  where  the  judg- 
ment is  of  death  or  of  imprisonment  for  life)  shall  be  limited  to  the 
review  of  questions  of  law."  That  is,  that  while  in  all  other  crim- 
inal cases  the  jurisdiction  of  the  Court  of  Appeals  should  be  limited 
to  the  review  of  questions  of  law,  in  cases  of  death  or  imprison- 
ment for  life  they  should  not  be  so  restricted  but  might  also  review 
questions  of  fact.  Now,  the  consequence  of  that  amendment  is 
this :  Under  the  present  law,  as  I  have  said  before,  there  is  but  one 
appeal  —  to  the  Court  of  Appeals  —  where  the  judgment  is  of  death. 
That,  I  suppose,  is  thoroughly  understood  by  the  Convention. 
But  in  cases  where  the  judgment  is  of  imprisonment  for  life,  under 
that  amendment,  and  unless  the  next  clause  is  also  amended,  there 
would  be  two  appeals,  that  is,  there  would  be  one  appeal  to  the 
Court  of  Appeals,  where  the  questions  of  fact  and  of  law  might  be 
reviewed  in  cases  where  the  judgment  is  of  death;  and  there  would 
be  two  appeals  in  every  case  where  a  man  had  been  sentenced  to 
imprisonment  for  life,  including,  of  course,  not  only  cases  of  murder 
in  the  second  degree,  but  also  cases  of  arson,  and  cases  of  forgery 


August  22.]  CONSTITUTIONAL  CONVENTION.  mi 

in  the  first  degree.  So,  that  we  have  got  ourselves  into  this 
anomalous  position:  that  we  are  going  to  give  a  man  who  was 
convicted  of  murder  in  the  second  degree  or  of  forgery  in  the  first 
degree  or  of  arson  in  the  first  degree,  a  greater  privilege  in  the  way 
of  appeal  than  we  are  going  to  give  a  man  convicted  of  murder  in 
the  first  degree.  That  certainly  is  not  right.  And,  recognizing 
that  it  was  not  right,  when  we  came  to  read  the  second  section  of 
this  proposed  amendment  on  line  i,  of  page  8,  it  was  moved  to  add 
after  the  word  "  death,"  also  the  words  "  or  imprisonment  for  life." 
That  was  to  put  all  persons  so  convicted,  either  of  murder  in  the 
first  degree,  of  murder  in  the  second  degree,  of  forgery  in  the  first 
degree,  or  of  arson  in  the  first  degree,  on  the  same  level.  To  that 
I  said  that  I  had  no  objection,  not  because  I  thought  that  the  right 
of  intermediate  appeal  ought  to  be  taken  away,  and  that  a  man 
convicted  of  crime  ought  to  have  only  one  appeal;  but  I  objected 
to  it  on  account  of  the  great  volume  of  business  in  the  Court  of 
Appeals,  that  we  thereby  entailed  upon  it.  That  amendment  was 
voted  down  by  the  vote  just  taken.  And,  as  the  article  now  stands, 
by  reason  of  that  last  vote,  the  Convention  is  in  this  position: 
Unless  the  motion  to  reconsider  shall  prevail,  and  we  give  to  the 
man  convicted  of  murder  in  the  first  degree  one  appeal,  and  under 
this  article,  we  give  to  the  man  convicted  of  murder  in  the  second 
degree,  of  forgery  in  the  first  degree,  or  of  arson  in  the  first  degree, 
the  right  to  take  an  appeal  to  the  Appellate  Division  where  ques- 
tions of  fact  and  of  law  may  be  discussed  and  decided,  and  after 
that  he  may  take  an  appeal  to  the  Court  of  Appeals  where  questions 
of  fact  and  of  law  may  again  be  decided;  whereas  a  man  who  is 
convicted  of  murder  in  the  first  degree  can  only  take  one  appeal  to 
the  Court  of  Appeals  for  the  purpose  of  reviewing  questions  of  fact 
and  of  law.  That  ought  not  to  be  the  position  in  which  we  leave 
the  Constitution.  We  ought  either  to  take  Mr.  Crosby's  amend- 
ment in  its  fullest  sense  and  application,  or  we  ought,  unless  we 
desire  to  make  that  inequality  between  men  guilty  of  those  offenses, 
to  reconsider  the  vote  which  we  took  this  morning. 

Mr.  Platzek  —  Mr.  Chairman,  my  friend,  Mr.  Blake,  has  sug- 
gested that  it  was  a  stultification  for  this  Convention  to  vote  one 
way  this  morning  and  differently  this  afternoon ;  and  that  we  ought 
to  stand  upon  principle.  I  voted  in  favor  of  Mr.  Crosby's  propo- 
sition this  morning,  and  I  am  now  in  favor  of  reconsidering  that 
vote  because,  on  principle,  I  have  discovered  that  my  vote  of  this 
morning  was  wrong,  and  I  think  I  would  stultify  myself  now,  in  the 
light  that  I  have  since  received,  if  I  failed  to  correct  my  error.  As 
I  understand  the  proposition  it  was  this:  in  a  special  case,  where 


1 1 12  REVISED  RECORD.  [Wednesday, 

death  is  the  penalty,  the  appeal  is  directly  to  the  Court  of  Appeals, 
and  there  the  questions  of  law  and  the  questions  of  fact  are  both 
reviewed;  but  where  the  penalty  is  imprisonment  for  life  there  is 
in  the  first  instance  an  appeal  to  the  General  Term,  at  present, 
and  hereafter  to  the  Appellate  Division  of  the  Supreme  Court,  which 
will  review  the  law  and  the  facts,  and  thereafter  there  is  an  addi- 
tional appeal  to  the  Court  of  Appeals  upon  the  law  alone.  There- 
fore it  appears  to  my  judgment  that  the  rights  of  the  defendant, 
or  of  the  criminal,  if  you  please,  are  surrounded  with  greater  safe- 
guards when  he  is  able  to  have  the  General  Term  first  review 
the  questions  of  fact  and  of  law,  and  then  be  heard  again  in  the 
Court  of  Appeals  upon  questions  of  law  alone.  And  in  that  way 
we  believe  the  calendar  of  the  Court  of  Appeals,  or  rather  the  work 
of  the  judges  of  the  Court  of  Appeals,  by  withdrawing  from  them 
the  necessity  of  reviewing  the  facts  and  only  passing  upon  the  law. 
That  being  my  belief,  and  especially  after  having  listened  to  the 
suggestion  in  that  regard  by  the  gentleman  from  New  York  (Mr. 
Nicoll),  to  whose  experience  I  am  always  willing  to  yield  in  matters 
pertaining  to  criminal  law,  I  am  prepared  to  vote  for  a 
reconsideration. 

Mr.  Cady  —  Mr.  Chairman,  I  desire  very  briefly  to  call  the 
attention  of  the  committee  to  a  single  consideration  connected  with 
this  matter.  Under  the  provision  as  reported  by  the  committee, 
a  person  convicted  of  any  offense  which  entails  punishment  of 
imprisonment  for  life,  can  reach  the  Court  of  Appeals  so  that  ques- 
tions of  fact  can  there  be  considered,  unless  seventeen  men  —  the 
twelve  jurors  necessarily  concur  in  the  verdict,  and  five  justices 
of  the  Supreme  Court  sitting  in  the  Appellate  Division  —  decide 
that  there  is  evidence  sufficient  to  sustain  a  conviction.  If  there  is 
a  dissent  in  the  Appellate  Division  on  questions  of  fact;  if  a  single 
judge  out  of  the  five  composing  that  tribunal  dissents  from  the 
position  that  there  is  evidence  supporting  or  tending  to  support 
the  conclusion  which  the  jury  has  reached,  then  the  Court  of  Appeals 
under  this  provision  may  pass  upon  the  questions  of  fact.  What 
is  the  situation,  even  in  its  worst  aspect,  as  claimed  by  the  advo- 
cates of  this  amendment?  In  cases  of  murder  in  the  first  degree, 
where  the  judgment  is  of  death,  nineteen  men  may  pass  upon  the 
questions  of  fact  —  the  twelve  jurors  who  find  the  verdict,  and  the 
seven  judges  sitting  in  the  Court  of  Appeals,  to  whom  the  appeal 
upon  the  questions  of  law  and  of  fact  may  be  taken  directly  from 
the  trial  court.  So  I  say  that  in  the  worst  aspects  of  the  case  as 
viewed  by  the  advocates  of  the  amendment,  there  would  be  only 
two  less  judges,  two  fewer  men,  to  pass  upon  the  questions  of 


August  22.]  CONSTITUTIONAL  CONVENTION.  1113 

fact  involved.  And  if  there  is  a  single  dissent,  as  I  say,  in  Appel- 
late Division  upon  a  question  of  fact,  then  the  case  goes  of  right 
under  this  proposed  amendment  to  the  Court  of  Appeals.  That 
seems  to  me  to  be  at  least  sufficient  security  for  any  person  so 
convicted  upon  the  question  of  fact. 

Mr.  Maybee  —  Mr.  Chairman,  no  such  provision  as  that  pro- 
posed by  the  gentleman  from  Delaware  as  in  the  old  Constitution, 
and  no  such  provision  is  in  the  statutory  law  of  this  State,  and 
no  such  provision  ought  to  be  in  the  amendments  to  be  submitted 
to  the  people  this  fall.  The  reason  why  in  capital  cases  such  a 
provision  is  proper  is  apparent.  In  those  cases  if  an  error  was  com- 
mitted, and  the  judgment  carried  into  execution,  no  remedy  could 
be  had.  But  in  cases,  where  the  judgment  is  of  imprisonment,  the 
person  unjustly  convicted  still  exists,  and  if  an  error  of  fact  be  dis- 
covered, a  remedy  by  executive  clemency,  or  in  some  other  manner, 
is  possible.  Now,  if  the  principle  contended  for  by  the  gentleman 
from  Delaware  is  correct,  then  this  ought  to  be  the  case;  where  the 
judgment  is  of  imprisonment  for  a  term  of  years,  and  the  age  of 
the  criminal  sentenced  is  such  that  a  sentence  for  that  term  would 
extend  beyond  the  probable  duration  of  his  natural  life,  then  you 
ought  to  extend  the  same  privilege  to  a  prisoner  sentenced  for 
such  term  of  years  as  to  one  receiving  a  life  sentence.  So  that 
there  does  not  seem  to  be  any  propriety  or  wisdom  in  the  sugges- 
tion of  the  gentleman  from  Delaware  (Mr.  Crosby),  and,  therefore, 
I  hope  that  the  amendment  proposed  by  him  will  be  voted  down, 
and  the  section  left  in  its  present  form. 

Mr.  Blake  —  Mr.  Chairman,  one  reason  why  it  is.  advisable  that 
an  appeal  should  be  allowed  to  the  court  of  last  resort  on  questions 
of  fact  as  well  as  of  law,  is  this:  We  all  know  very  well  that  the 
justices  of  the  Supreme  Court  of  the  department  where  a  case  may 
be  brought  to  trial  are  susceptible  to  the  influence  of  public  clamor, 
whereas  the  Court  of  Appeals  is  far  removed  from  such  influence. 
A  second  reason  is  one  which  appeals  to  the  gentlemen  here  who 
are  lawyers.  They  know  that  not  long  since  the  Court  of  Appeals 
abolished  the  right  of  a  man  convicted  of  capital  crime  to  appeal  to 
the  General  Term,  and  compelled  him  to  appeal  directly  to  the 
Court  of  Appeals.  Why  may  not  the  Legislature  proceed  in  like 
manner?  Why  do  you  not  leave  to  the  Legislature  the  right  to  say 
that  a  man  convicted  of  murder  in  the  second  degree  may  appeal 
directly  to  the  Court  of  Appeals?  It  is  a  matter  for  legislative 
enactment.  We  are  supposed  here  to  make  the  permanent  law; 
we  are  not  to  regulate  the  methods  of  appeal;  and  the  Legislature 
will  undoubtedly  at  its  first  session  correct  this  error.  Therefore, 


1 1 14  REVISED  RECORD.  [Wednesday, 

I  say,  for  these  two  reasons,  if  for  no  other,  you  should  give  to  a 
man  convicted  of  murder  in  the  second  degree  an  appeal  to  the 
court  of  last  resort;  and  what  I  contend  for  is  that  he  shall  have  his 
right  determined,  not  by  the  Supreme  Court  of  the  same  district 
where  the  alleged  crime  was  committed,  but  by  the  court  of  last 
resort.  That  is  my  contention.  He  has  just  as  much  right  to  have 
his  rights  determined  by  that  court  as  has  a  man  convicted  of  a 
capital  offense. 

Mr.  A.  B.  Steele — I  would  like  to  ask  JudgevCady  what  lan- 
guage of  this  section  he  construes  as  giving  a  person  convicted  of 
murder  in  the  second  degree  the  right  to  have  his  appeal  taken  to 
the  Court  of  Appeals  and  there  heard  on  questions  of  fact,  where 
the  General  Term  is  not  unanimous.  What  language  is  there  in 
this  section  that  gives  to  a  person  under  those  circumstances,  con- 
victed of  murder  in  the  second  degree,  the  right  to  have  his  appeal 
heard  upon  questions  of  fact  in  the  Court  of  Appeals? 

Mr.  Cady  —  I  refer  to  the  language  to  be  found  in  section  9,  line 
23:  "No  unanimous  decision  of  the  Appellate  Division  of  the 
Supreme  Court  that  there  is  evidence  supporting  or  tending  to  sus- 
tain a  finding  of  fact  or  a  verdict  not  directed  by  the  court,  shall  be 
reviewed  by  the  Court  of  Appeals ; "  and  which  section  permits  an 
appeal  where  there  is  a  dissent. 

Mr.  A.  B.  Steele  —  I  cannot  quite  see  how  that  is.  I  do  not  see 
how  that  language  gives  him  the  right  to  have  his  case  heard  in  the 
Court  of  Appeals  upon  a  question  of  fact.  The  reason  I  speak  of 
this  is  because  I  want  to  understand  it  thoroughly  before  I  vote. 
I  did  not  vote  at  all  this  forenoon  on  the  question  of  whether  this 
amendment  should  be  carried,  and  I  did  not  vote  for  the  reason  that 
I  wanted  to  see  the  judiciary  article  passed  as  nearly  as  possible, 
if  not  in  the  exact  language  or  in  the  exact  terms,  in  substantially 
the  teams,  reported  by  the  committee.  If  I  am  wrong  with  refer- 
ence to  my  understanding  of  the  language  of  this  section,  then  I 
certainly  am  not  in  favor  of  it,  or  rather  I  am  not  in  favor  of  the 
amendment;  but  if  the  language  is  not  sufficiently  clear,  so  that  a 
person  convicted  of  murder  in  the  second  degree,  where  the  General 
Term  is  not  unanimous,  can  have  the  questions  of  fact  raised  at  the 
General  Term,  then  it  seems  to  me  that  it  ought  to  be.  There  is 
in  my  mind  no  question  but  what  the  punishment  for  murder  in  the 
second  degree,  although  it  does  not  take  the  life  of  the  individual, 
is  substantially  as  severe,  and  should  be  substantially  as  carefully 
considered  by  the  Appellate  Court  as  in  case  of  conviction  of 
murder  in  the  first  degree ;  because,  among  other  reasons,  a  person 


August  22.]  CONSTITUTIONAL  CONVENTION.  1115 

who  is  convicted  of  murder  in  the  first  degree  has  the  executive 
standing  between  him  and  death  until  the  execution  actually  takes 
place,  so  that  he  may  be  saved  from  the  consequences  of  the  judg- 
ment imposed  upon  him.  But  a  man  who  is  convicted  of  murder 
in  the  second  degree,  as  has  been  said  here,  is  civilly  dead;  his  prop- 
erty, and  all  his  rights  may  be  taken  away  from  him.  So  that, 
whether  the  conviction  be  of  murder  in  the  first  degree  or  of  murder 
in  the  second  degree,  it  seems  to  me  the  questions  of  fact  and  of 
law  should  be  considered  by  the  Appellate  Court  with  just  as  much 
care.  If  you  will  pardon  me,  I  will  make  a  further  suggestion.  It 
has  been  said  that  this  will  increase  the  duties  of  the  judges  of  the 
Court  of  Appeals.  I  may  be  wrong,  but  I  understand  that  the 
Court  of  Appeals  has  invited  this  Convention  to  leave  that  body 
substantially  the  same  as  it  was,  and  have  said  to  us,  in  substance, 
if  it  was  left  with  only  the  seven  judges  constituting  it  as  it  is  at 
the  present  time,  notwithstanding  the  fact  that  if  this  proposed 
amendment  to  the  Constitution  is  adopted  it  will  increase  the 
appeals  to  the  Court  of  Appeals  for  construction,  notwithstanding 
all  that,  they  say,  in  substance,  'that  they  are  willing  to  take  the 
responsibility  of  disposing  of  all  the  work  that  comes  before  them 
under  the  article  or  under  the  practice  as  presented  by  this  judiciary 
article. 

Mr.  Hirschberg  —  Mr.  Chairman,  I  desire  to  say  a  few  words  in 
answer  to  the  argument  advanced  by  the  gentleman  from  New 
York,  Mr.  Nicoll.  As  I  understand,  his  main  objection  to  the 
amendment  which  is  now  under  consideration  under  the  motion 
to  reconsider  the  vote  taken  this  morning,  was  that  to  leave  that 
amendment  to  stand  as  it  does  would  present  the  anomaly  that  a  man 
convicted  of  murder  in  the  first  degree  would  have  but  one  appeal, 
whereas  a  man  convicted  of  murder  in  the  second  degree  would 
have  two  appeals.  That  argument  has  no  force  whatever,  because 
that  anomaly  has  existed  now  for  years  in  this  State,  not  only  as 
between  a  man  convicted  of  murder  in  the  first  degree  and  a  man 
convicted  of  murder  in  the  second  degree,  but  also  as  between  a 
man  convicted  of  murder  in  the  first  degree  and  a  man  convicted  of 
any  other  crime  in  the  category.  In  the  county,  in  which  I  reside, 
last  year  a  man  who  was  convicted  of  murder  in  the  first  degree 
took  his  appeal  to  the  Court  of  Appeals,  and  that  court  affirmed  the 
conviction,  and  he  was  executed.  In  the  same  year  a  man  was 
convicted  of  the  crime  of  fishing  on  Sunday,  and  was  fined  five 
dollars.  He  took  an  appeal  to  the  County  Court,  and  the  convic- 
tion was  affirmed.  He  took  an  appeal  to  the  General  Term,  and 
the  conviction  was  again  affirmed.  He  took  an  appeal  to  the  Court 


Hl6  REVISED  RECORD.  [Wednesday, 

of  Appeals,  and  the  Court  of  Appeals,  after  argument  and  patient 
hearing,  and  after  several  months  of  deliberation,  affirmed  the 
conviction  by  a  vote  of  four  to  three;  and  he  was  compelled  to  pay 
the  five  dollars.  (Laughter.)  Now,  if  the  State  of  New  York  can 

stand  that  anomaly 

Mr.  Goodelle  —  I  want  to  ask  the  gentleman  a  question. 

The  Chairman  —  The  Chair  rules  that  the  gentleman  speaking 
cannot  be  interrupted. 

Mr.  Hirschberg  —  I  think  it  is  just  as  well  to  let  the  examination 
in  chief  close  first.  Now,  I  say  that  if  the  State  of  New  York  can 
stand  that  anomaly  it  can  stand  the  strain  on  its  sense  of  justice  and 
humanity  of  permitting  two  appeals  to  be  taken  in  cases  of  murder 
in  the  second  degree,  although  only  one  is  taken  in  cases  of 
murder  in  the  first  degree.  So  much  for  that  argument  of  the 
gentleman  from  New  York. 

Now,  as  to  the  other  arguments.  It  does  seem  to  me  that  if  a 
court  is  to  pass  in  review  upon  a  judgment  which  will  deprive  a  man 
of  his  liberty  for  life,  it  ought  to  be  permitted  to  pass  upon  ques- 
tions of  fact  as  well  as  upon  questions  of  law.  There  is  no  ade- 
quate review  in  a  criminal  case  which  does  not  involve  an  examina- 
tion of  the  facts;  and  no  court  should  be  compelled  to  write  an 
ultimate  judgment  in  a  criminal  case,  if,  in  its  opinion,  the  facts  in 
that  case  do  not  tend  to  prove  the  commission  of  the  crime.  A  few 
months  ago  the  Albany  Law  Journal  contained  an  account  of  a 
decision  in  a  western  case,  in  a  court  of  last  resort,  where  the  sylla- 
bus contained  just  this  single  principle:  "A  conviction  in  a  case  of 
murder  should  be  reversed  if  the  facts  proved  do  not  tend  to  show 
that  the  defendant  committed  the  crime."  Can  any  one  find  fault 
with  that  decision,  or  that  opinion?  Why  then  should  the  Court 
of  Appeals  in  this  State,  in  a  case  involving  human  liberty  for  life, 
be  asked  to  decide  a  case  where,  in  their  judgment,  reviewing  the 
question  dispassionately,  removed  from  the  atmosphere  of  the 
alleged  offense,  they  conclude  that  on  the  facts  as  established  no 
crime  has  been  proven? 

I  voted  for  the  resolution  amending  the  section  this  morning,  and 
I  shall  vote  against  the  resolution  to  reconsider  because  I  think 
that  so  long  as  there  is  a  tribunal  in  this  State  of  last  jurisdiction, 
of  final  appeal,  it  should  have  the  right  and  it  should  be  made  its 
duty  to  pass  upon  questions  involving  life  and  death;  and  it  should 
therefore  have  the  right  to  review  questions  in  judgments  where 
imprisonment  for  life  is  the  penalty;  and  should  not  only  be  required 
to  review  such  cases  on  appeal,  but  should  review  both  the  law  and 
the  facts. 


August  22.]  CONSTITUTIONAL  CONVENTION.  1117 

Mr.  Goodelle  —  Does  the  gentleman  mean  to  convey  the  idea 
that  in  the  case  cited  by  him  the  Court  of  Appeals  reviewed  the 
case  upon  the  facts?  I  mean  the  conviction  for  fishing  on 
Sunday. 

Mr.  Hirschberg — Entirely  upon  the  facts. 

Mr.  Goodelle  — The  Court  of  Appeals  did  that? 

Mr.  Hirschberg  —  Yes. 

Mr.  Goodelle  —  Were  the  facts  of  such  a  character  that  they  con- 
stituted a  question  of  law? 

Mr.  Hirschberg  —  The  question  of  fact  was  whether  the  con- 
ceded fact  that  the  man  fished  in  private  property  upon  Sunday, 
was  a  crime  under  the  code. 

Mr.  Goodelle  —  It  became,  therefore,  a  question  of  law. 

Mr.  Hirschberg  —  No;  it  became  a  question  of  fact  —  whether 
the  act,  which  was  not  disputed  —  for  there  was  no  disputed  fact 
at  all  —  was  a  crime. 

Mr.  Goodelle  —  What  was  that  if  not  a  question  of  law. 

Mr.  Marshall  —  Why,  no;  you  are  mistaken. 

Mr.  Goodelle  —  Does  the  gentleman  understand  that  the  Court 
of  Appeals  reviews  any  question  of  fact  in  such  a  case? 

Mr.  Hirschberg  —  Always  the  question  of  any  evidence  of  guilt. 

Mr.  Goodelle  —  Either  my  friend  is  greatly  mistaken,  or  else  I  am. 

Mr.  Hirschberg  —  What  was  Judge  Gray's  opinion  in  the  Harris 
case  but  a  review  of  the  facts? 

Mr.  Goodelle  —  I  understand  that  where  the  facts  predominate 
so  to  one  side  or  the  other  that  it  becomes  a  question  of  law  as  to 
whether  a  conviction  is  sustained  or  not  in  those  cases,  and  only 
in  those  cases,  the  Court  of  Appeals  will  review  them.  What  I 
desire  to  say  while  upon  my  feet  is  this,  upon  principle,  I  see  no 
reason  why  this  amendment  should  be  accepted.  I  have  in  my  own 
recollection  a  case  where  a  party  aged  seventy-five  years  was  con- 
victed upon  four  separate  indictments,  and  was  sentenced  for  forty 
years  upon  the  four  indictments,  or  ten  years  upon  each.  Nobody 
could  claim  that  that  man  would  live  to  see  the  end  of  his  forty 
years  of  imprisonment.  If  the  rule  is  to  prevail,  which  has  been 
suggested  here,  why  should  it  be  confined  to  people  convicted  of 
murder  in  the  second  degree?  If  that  is  not  to  be  the  case,  where  is 
the  line  to  be  drawn?  There  is  adequate  reason  why,  in  capital 
cases,  in  a  case  of  murder  in  the  first  degree,  the  exception  should 


REVISED  RECORD.  [Wednesciay, 

be  made,  but  I  see  no  reason  and  no  logic  or  any  suggestion  to 
be  made  why  it  should  exist  in  any  other  case. 

Mr.  Crosby  —  A  single  further  suggestion.  I  desire  to  answer 
first  the  gentleman  from  Onondaga,  who  says  that  he  does  not  see 
a  single  reason  why,  in  this  class  of  cases,  the  rule  should  be  applied. 
It  has  been  well  suggested  by  the  gentleman  from  Herkimer  that 
in  capital  cases,  before  the  punishment  of  death  is  inflicted,  executive 
clemency  may  restore  the  prisoner  to  his  civil  rights.  But,  in  cases 
where  the  punishment  is  imprisonment  for  life,  as  I  read  the 
decisions  of  the  Court  of  Appeals,  it  is  impossible  for  the  executive 
to  restore  the  prisoner  to  all  his  rights  by  giving  him  a  discharge 
from  imprisonment.  His  family  is  gone;  his  wife  is  severed  from 
him  by  operation  of  law;  his  children  are  no  longer  under  his 
guardianship  or  control.  It  is  possible  that  the  gentleman  from 
Onondaga  does  not  regard  those  as  matters  of  any  importance,  but 
to  the  ordinary  citizen,  who  has  not  risen  to  that  height  of  under- 
standing of  the  human  affections,  it  is  a  strong  substantial  reason. 
This  morning  this  Convention  voted  on  principle  deliberately,  and, 
after  considering  the  arguments  upon  the  question  of  the  right  to 
human  liberty,  now  it  is  asked  to  vote,  not  upon  that  question,  but 
the  argument,  and  the  pressure  that  has  been  brought  around  this 
Convention  on  this  floor  and  outside,  is  not  on  the  main  question, 
but  whether  it  is  sacrilegious,  unholy  and  unlawful  to  attack  the 
report  of  the  Judiciary  Committee.  The  other  question  is  whether 
we  should  be  led  by  this  outside  influence,  or  should  vote  as  we 
believe  to  be  right,  and  as  we  did  this  morning. 

The  Chairman  put  the  question  on  the  motion  of  Mr.  Nicoll  to 
reconsider,  and  it  was  announced  as  determined  in  the  affirmative. 

Mr.  Crosby  —  I  call  for  a  division  of  the  House. 

The  Chairman  put  the  question  on  the  motion  of  Mr.  Nicoll  to 
reconsider,  and,  by  a  rising  vote,  it  was  determined  in  the  affirmative 
by  72  ayes  to  43  noes. 

The  Chairman  —  The  motion  to  reconsider  is  carried.  Now,  the 
question  is  upon  the  motion  made  by  the  gentleman  from  Delaware 
(Mr.  Crosby),  to  insert  in  line  22,  section  9,  after  the  word  "  death  " 
the  words  "  or  imprisonment  for  life." 

Mr.  Crosby  —  On  that  question  I  call  for  a  count. 

The  Chairman  put  the  question  on  the  amendment  offered  by 
Mr.  Crosby,  and,  by  a  rising  vote,  it  was  determined  in  the  nega- 
tive by  a  vote  of  55  ayes  to  67  noes. 

The  Chairman  —  Are  there  any  further  amendments  to  section 
nine? 


August  22.]  CONSTITUTIONAL  CONVENTION.  1119 

Mr.  Blake  —  Now,  Mr.  Chairman,  to  relieve  the  situation  of  some 
of  the  objections  urged  here  by  gentlemen  who  seem  to  be  some- 
what conscientious,  I  desire  to  move  the  following  amendment:  I 
move  that  the  words  in' lines  21  and  22,  on  page  7,  "  except  where 
the  judgment  is  of  death,"  and  also  the  words  in  line  i,  on  page  8, 
"  except  where  the  judgment  is  of  death,"  be  stricken  out,  and  that 
the  amendment,  which  I  send  to  the  desk,  may  be  added  after  the 
words  "  against  them,"  in  line  7,  on  page  8. 

The  Chairman  —  It  is  written  here  (Mr.  Blake's  amendment): 
"  Except  where  the  judgment  is  of  death  or  of  imprisonment  for 
life,  the  appeal  may  be  from  the  judgment  of  the  trial  court  directly 
to  the  Court  of  Appeals,  which  may,  in  such  cases,  review  both 
law  and  fact." 

Mr.  Blake  —  That  is  it. 

Mr.  Nicoll  —  I  would  like  to  have  the  amendment  read  again. 

The  Chairman  —  It  is  to  strike  out  "  except  where  the  judgment 
is  of  death,"  in  line  22,  on  page  7,  and  also  to  strike  out  in  line  i, 
on  page  8,  the  words  "  except  where  the  judgment  is  of  death,"  and 
it  will  then  read:  "Except  where  the  judgment  is  of  death  or  of 
imprisonment  for  life,  the  appeal  may  be  from  the  judgment  of  the 
trial  court  directly  to  the  Court  of  Appeals,  which  may,  in  such 
cases,  review  both  law  and  fact." 

Mr.  Blake  —  I  offer  that  amendment,  as  I  said  before,  to  meet 
some  objections  which  have  been  urged,  apparently  with  some  force 
and,  perhaps,  altogether  conscientiously,  by  certain  gentlemen  who 
were  misled  in  the  vote  taken  this  morning,  who  did  not  under- 
stand that  a  man  convicted  of  murder  in  the  second  degree  had  an 
appeal  to  the  intermediate  Appellate  Court;  and  I  say,  to  meet  that 
objection,  I  have  offered  this  proposition,  which  is  an  entirely  dif- 
ferent one,  in  which  the  question  can  be  squarely  met  and  squarely 
voted  upon  intelligently  by  everybody.  We  only  ask  that  one 
appeal  shall  lie,  and  that  to  the  Court  of  Appeals. 

Mr.  Dean  —  I  rise  to  a  point  of  order.  Under  rule  55  this  is  an 
equivalent  motion,  and  cannot  be  entertained  at  this  time. 

The  Chairman  —  I  do  not  know  whether  it  is  equivalent  or 
whether  it  is  not  equivalent  myself.  The  Chair  would  like  to  ask 
Mr.  Blake  where  he  wants  these  words  inserted? 

Mr.  Blake  —  Mr.  Chairman,  with  the  permission  of  the  Conven- 
tion, I  ask  that  the  first  word  "  except "  be  stricken  out  of  the 
amendment. 

The  Chairman  —  That  is  out. 


1 120  REVISED  RECORD.  [Wednesday, 

Mr.  Blake  —  The  amendment  is  to  follow  the  words  "  against 
them,"  at  line  7,  on  page  8. 

The  Chairman  —  The  point  of  order  is  not  well  taken.  The 
question  is  upon  the  motion  of  Mr.  Blake." 

Mr.  Hawley  —  I  move  to  amend  the  amendment  by  inserting 
after  the  word  "  life  "  "  or  for  ten  years." 

The  Chairman  put  the  question  on  the  adoption  of  the  amend- 
ment offered  by  Mr.  Hawley,  and  it  was  determined  in  the 
negative. 

The  Chairman  then  put  the  question  on  the  amendment  pro- 
posed by  Mr.  Blake,  and  it  was  determined  in  the  negative,  by  a 
rising  vote,  44  to  68. 

The  Chairman  —  Are  there  any  further  amendments  to  section  9? 

Mr.  Roche  —  Mr.  Chairman,  I  find  the  following  in  lines  u  to  14, 
page  8:  "The  Legislature  may  further  restrict  the  jurisdiction  of 
the  Court  of  Appeals,  and  the  right  of  appeal  thereto,  but  it 
shall  never  make  the  right  to  appeal  depend  upon  the  amount 
involved."  The  impression  here  is  that  this  sentence  abrogates  the 
present  restriction,  the  $500  restriction.  I  would  like  to  know  if,  in 
fact,  it  does  that?  Has  it  a  retroactive  effect?  If  it  should  be 
adopted  by  the  people,  it  will  take  effect,  I  presume,  the  first  of 
January  next.  Now,  how  does  it  affect  what  has  already  been 
adopted  by  the  Legislature?  Will  it  be  said  that  it  simply  operates 
to  prevent  the  Legislature  in  the  future  from  passing  any  acts 
making  the  right  to  appeal  depend  upon  the  amount  involved? 
Supposing  that  the  Convention  should  adopt  a  provision,  which 
is  now  before  it,  saying  that  the  Legislature  shall  not  pass  any 
private  or  local  act,  regulating  county  or  township  affairs,  wrould 
it  be  held  that  that  in  any  manner  affected  the  acts  of  that  char- 
acter which  had  already  been  passed  by  the  Legislature  and  which 
are  upon  the  statute  book?  Now,  if  there  is  any  doubt  upon  this 
subject,  it  seems  to  me  that  it  should  be  removed,  and  it  can  very 
easily  be  removed  by  having  the  section  read  in  this  way:  "  But- the 
right  to  appeal  shall  never  depend  upon  the  amount  involved,"  or, 
"the  right  to  appeal  shall  not  depend  upon  the  amount  involved." 
That  will  be  legislating  upon  the  present  act  and  upon  the  present 
condition  of  affairs,  and  will  make  it  certain  that  by  this  Constitution 
we  not  only  act  upon  what  is  already  on  the  statute  book  upon  the 
subject,  but  will  make  it  prohibitory  upon  the  Legislature  from 
passing  any  similar  acts  in  the  future. 

The  Chairman  —  The  Secretary  will  read  section  TO,  if  there  are 
no  amendments  to  section  9. 


August  22.]  CONSTITUTIONAL  CONVENTION.  1 121 

Mr.  Roche  —  I  make  that,  Mr.  Chairman,  as  an  amendment. 
I  may  be  all  wrong,  but  it  seems  to  me  that  it  is  sufficiently  in 
doubt  to  have  it  made  certain  by  the  Convention.  I,  therefore, 
move  that  the  sentence  shall  be  amended  to  read  as  follows:  "The 
Legislature  may  further  restrict  the  jurisdiction  of  the"  Court  of 
Appeals  and  the  right  of  appeal  thereto,  but  the  right  to  appeal 
shall  not  depend  upon  the  amount  involved." 

Mr.  Root  —  Mr.  Chairman,  I  feel  very  much  inclined  to  agree 
with  the  gentleman  from  Rensselaer  upon  the  subject.  I  would 
like  to  think  about  it  a  few  minutes,  and  I  think  other  members 
of  the  committee  who  drafted  this  section  would,  if  it  can  be  post- 
poned for  a  few  minutes.  I  do  not  like  to  say  yes  just  on  the 
spur  of  the  moment  without  a  little  time  for  reflection. 

Mr.  Nicoll  —  Mr.  Chairman,  I  am  opposed  to  the  principle  of  it, 
but,  so  far  as  the  language  is  concerned,  I  think  it  better  come  out. 
It  is  desired  to  wipe  out  the  present  $500  limitation,  that  would  do 
it  better  than  this  language. 

Mr.  Root  —  Then,  Mr.  Chairman,  I  will  say  now,  that  I  think 
that  that  language  should  be  accepted. 

The  Chairman  put  the  question  on  the  adoption  of  the  amend- 
ment proposed  by  Mr.  Roche,  and  it  was  determined  in  the 
affirmative. 

The  Chairman  —  Are  there  any  further  amendments  to  section  9? 

Mr.  Roche  —  Mr.  Chairman,  I  find  the  first  sentence  in  section  9, 
declaring  that  the  jurisdiction  of  the  Court  of  Appeals  shall  be 
limited  to  the  review  of  questions  of  law.  I  simply  want  to  make 
the  inquiry  whether  the  committee  understands  by  that  that  we  are 
adopting  any  new  or  different  rule  from  that  which,  in  fact,  now 
prevails;  whether  it  is  simply  a  declaratory  provision  of  existing 
law  or  practice,  or  whether  it  is  intended  to  declare  and  provide  for 
some  new  rule? 

Mr.  Marshall  —  It  is  declaratory. 
•Mr.  Nicoll  —  Declaratory. 

The  Chairman  —  If  the  Chair  hears  no  further  amendments,  the 
Secretary  will  read  section  10. 

The  Secretary  read  section  10  as  follows: 

Sec.  10.    The  judges  of  the  Court  of  Appeals  and  the  justices 
of  the  Supreme  Court  shall  not  hold  any  other  office  or  public 
trust.    All  votes  for  any  of  them,  for  any  other  than  a  judicial  office, 
given  by  the  Legislature  or  the  people,  shall  be  void. 
71 


1 122  REVISED  RECORD.  [Wednesday, 

The  Chairman  —  Are  there  any  amendments  to  section  10?     If 
the  Chair  hears  none,  the  Secretary  will  read  section  n. 
The  Secretary  read  section  n  as  follows: 

"Sec.  ii.  Judges  of  the  Court  of  Appeals  and  justices  of  the 
Supreme  Court  may  be  removed  by  concurrent  resolution  of  both 
Houses  of  the  Legislature,  if  two-thirds  of  all  the  members  elected 
to  each  House  concur  therein.  All  other  judicial  officers,  except 
justices  of  the  peace  and  justices  of  inferior  courts,  not  of  record, 
may  be  removed  by  the  Senate,  on  the  recommendation  of  the  Gov- 
ernor, if  two-thirds  of  all  the  members  elected  to  the  Senate  concur 
therein.  But  no  officer  shall  be  removed  by  virtue  of  this  section, 
except  for  cause,  which  shall  be  entered  on  the  Journals,  nor  unless 
he  shall  have  been  served  with  a  statement  of  the  cause  alleged, 
and  shall  have  had  an  opportunity  to  be  heard.  On  the  question 
of  removal  the  yeas  and  nays  shall  be  entered  on  the  Journal." 

The  Chairman  —  Are  there  any  amendments  to  section  n? 

Mr.  Hawley  —  Mr.  Chairman,  I  observe  that  in  line  6,  the  first 
word  is  "  journals."  Is  that  an  error?  Ought  it  not  be  "  journal?  " 

Mr.  Root  —  Mr.  Chairman,  I  will  answer  the  gentleman  that  that 
is  the  language  of  the  existing  Constitution,  and  I  suppose  it  is 
intended  to  cover  the  case  where  the  removal  is  to  be  by  the  con- 
current resolution  of  both  Houses,  as  well  as  the  case  where  it  is 
to  be  by  the  Senate  alone. 

Mr.  Hawley  —  I  think  that  is  right. 

Mr.  Root  —  Mr.  Chairman,  let  me  say,  in  regard  to  this  section, 
that  we  have  made  only  one  change,  and  that  is,  whereas  the  old 
section  provided  that  no  removal  shall  be  made  by  virtue  of  this 
section,  unless  the  cause  thereof  be  entered  upon  the  journals,  nor 
unless  the  party  complained  of  shall  have  been  served  with  a  copy 
of  the  charges  against  him,  and  shall  have  had  an  opportunity 
of  being  heard,  we  have  made  it  read:  "But  no  officer  shall  be 
removed  by  virtue  of  this  section,  except  for  cause,  which  shall  be 
entered  on  the  journals,  nor  unless  he  shall  have  been  served  with 
a  statement  of  the  cause  alleged  and  shall  have  had  an  opportunity 
to  be  heard,"  the  difference  being  this  —  under  the  existing  pro- 
vision of  the  Constitution,  in  order  that  a  judicial  officer  should  be 
removed,  it  is  necessary  that  there  should  be  something  to  justify 
charges  against  him,  and  that  he  should  be  put  in  the  attitude  of  a 
party  complained  of,  served  with  a  copy  of  the  charges  against  him. 
Now,  there  have  been  a  number  of  instances  in  this  State  where 
judicial  officers,  through  no  fault  or  dereliction  of  their  own,  have 
been  unable  to  perform  their  duties — justices  who  had  had  soften- 


August  22.]  CONSTITUTIONAL  CONVENTION.  1123 

ing  of  the  brain,  who  have,  through  illness,  been  entirely  incapable 
of  performing  their  duties,  and  when  the  sugges^on  was  made  that 
they  ought  not  to  remain  in  the  receipt  of  the  large  salaries  which 
were  attached  to  their  offices  while  they  were  not  doing  anything, 
the  answer  was  that  they  could  be  removed  only  for  some  derelic- 
tion of  duty.  Charges  must  be  made  against  them,  culpability  must 
be  established,  they  must  be  branded  with  some  malfeasance  or 
misfeasance  in  office,  and,  therefore,  nothing  has  been  done.  I  pre- 
sume every  gentleman  can  recall  cases  of  that  kind.  We  have 
now  taken  and  substituted  merely  the  word  "  cause."  They  may 
be  removed  for  "  cause."  A  statement  of  the  cause  shall  be  served 
and  an  opportunity  given  to  be  heard;  and  that  is  language  which 
has  been  construed  by  the  Court  of  Appeals,  and  the  Court  of 
Appeals  has  said  that  this  very  language  means  incapacity  to  per- 
form the  duties  of  an  office.  That  is  the  only  change  that  has 
been  made. 

Mr.  Alvord  —  Mr.  Chairman,  permit  me  to  suggest  to  the  chair- 
man of  the  committee  that  this  is  the  first  time  the  word  "  journals  " 
appears  in  the  article.  It  may  be  the  journal  of  a  mechanic,  the  jour- 
nal of  a  merchant,  the  journal  of  a  lawyer.  It  seems  to  me  that 
that  wants  to  be  distinctly  mentioned.  I,  therefore,  propose  to 
him  that  it  should  read  "  on  the  journal  of  each  branch  of  the 
Legislature."  In  line  6,  after  the  word  "journals,"  read  "the  jour- 
nal of  each  branch  of  the  Legislature." 

Mr.  Root  —  Mr.  Chairman,  we  have  taken  the  precise  language 
of  the  existing  section  in  that  respect.  The  Constitution  has  just 
provided  for  the  concurrent  resolution  of  both  Houses  of  the  Legis- 
lature, and  it  then  says  that  it  shall  be  for  cause  and  the  cause 
shall  be  entered  on  the  journals.  I  do  not  believe  there  is  any 
real  possibility  of  misunderstanding  or  that  anybody  would  think 
that  it  was  a  railroad  journal,  for  instance. 

The  Chairman  —  Are  there  any  amendments  to  section  n?  If 
the  Chair  hears  none,  the  Secretary  will  read  section  12. 

The  Secretary  read  section  12  as  follows: 

"  Sec.  12.  The  judges  and  justices  hereinbefore  mentioned  shall 
receive  for  their  services  a  compensation  established  by  law,  which 
shall  not  be  diminished  during  their  official  terms. 

No  person  shall  hold  the  office  of  judge  or  justice  of  any  court 
longer  than  until  and  including  the  last  day  of  December  next  after 
he  shall  be  seventy  years  of  age. 

No  judge  or  justice  elected  after  the  ist  day  of  January,  1894,  shall 
be  entitled  to  receive  any  compensation  after  the  last  day  of  Decem- 


1 124  REVISED  RECORD.  [Wednesday, 

her  next  after  he  shall  be  seventy  years  of  age,  but  any  judge  of  the 
Court  of  Appeals  or  justice  of  the  Supreme  Court  elected  prior  to 
the  ist  day  of  January,  1894,  whose  term  of  office  has  been,  or 
whose  present  term  of  office  shall  be,  so  abridged,  and  who  shall 
have  served  as  such  judge  or  justice  ten  years  or  more  shall  be 
entitled  to  the  compensation  attached  to  his  office  during  the 
remainder  of  the  term  for  which  he  was  elected." 

Mr.  C.  B.  McLaughlin  —  Mr.  Chairman,  I  offer  the  following 
amendment: 

The  Secretary  read  the  amendment  offered  by  Mr.  McLaughlin, 
in  the  following  language:  "Strike  out  all  from  line  16  to  25,  inclu- 
sive, on  page  9." 

Mr.  Veeder  —  Mr.  Chairman,  if  the  gentleman  will  permit  me 
for  a  moment,  I  desire  to  offer  an  amendment  to  the  preceding 
paragraph  of  that  section,  line  15. 

The  Chairman  —  Only  one  motion  can  be  pending  at  a  time. 
The  amendment  is  not  in  order  at  this  time. 

Mr.  McLaughlin  —  I  do  not  understand  that  the  rules  prohibit 
his  offering  the  amendment. 

Mr.  Veeder  —  I  am  not  tenacious  about  it.  You  may  send  it 
back. 

The  Chairman  —  The  Chair  holds  that  there  can  be  only  one 
amendment  pending  at  a  time,  but  there  may  be  an  amendment  to 
the  amendment. 

Mr.  McLaughlin  —  Mr.  Chairman,  I  regret  that  I  feel  it  my  duty 
to  oppose  so  much  of  the  constitutional  amendment  under  discus- 
sion as  relates  to  the  pensioning  of  judges  elected  prior  to  Janu- 
ary i,  1894.  I  regret  it  because  what  I  may  say  upon  the  subject 
might  be  construed  into  a  personal  attack  upon  some  of  the  judges 
affected  by  the  amendment  which  I  have  offered.  1  have  no  inten- 
tion, sir,  of  making  any  attack  upon  any  judge,  and  what  I  may  say 
relates  entirely  to  this  system  which  is  incorporated  in  this  pro- 
posed amendment. 

Mr.  Chairman,  the  principle  which  looks  to  the  protection  of  any 
individual  from  the  effects  of  a  constitutional  amendment  seems  to 
me  to  involve  that  sort  of  questionable  legislation,  which  is  not 
only  vicious  in  principle,  but  which  this  body,  composed  of  the 
delegates  here  sitting,  should  condemn.  We  have,  time  and 
again,  heard  upon  this  floor  arguments  against  special  legislation, 
against  seeking  to  protect  any  individual  from  what  seemed  to  be 
the  interests  of  the  whole  people  of  the  State.  The  Judiciary  Com- 


August  22.]  CONSTITUTIONAL  CONVENTION.  1125 

mittee,  in  considering  this  subject,  has  condemned  the  system  of 
pensions,  but  for  some  curious  and  unknown  reason,  known  to 
themselves,  perhaps,  they  have  protected  a  few  judges  elected  prior 
to  January  I,  1894.  What  reasons  actuated  that  committee  in 
reaching  such  conclusion  I  know  not;  but  it  seems  to  me  that  the 
principle  here  inaugurated  is  one  which  this  body  should  condemn. 
Now,  Mr.  Chairman,  the  only  plausible  explanation,  as  it  seems  to 
me,  that  can  be  made  is  that  not  to  protect  those  judges,  elected 
prior  to  January  i,  1894,  would  be  a  breach  of  good  faith  on  the 
part  of  the  people  of  this  State.  There  is  neither  reason  nor  author- 
ity, as  it  seems  to  me,  for  such  a  position.  The  question  of  good 
faith  on  the  part  of  the  people  of  this  State  has  no  more  to  do 
with  this  proposition  than  any  amendment  which  we  may  propose 
in  this  body.  The  members  of  this  Convention  are  here  assembled 
for  one  purpose;  that  is  to  amend  and  revise  the  Constitution,  and 
when  we  have  once  reached  the  conclusion  that  a  given  subject  of 
the  Constitution  should  be  amended  and  revised,  and  have  pro- 
posed the  amendment,  we  have  performed  our  duty.  If  we  go  a 
step  beyond  that  and  seek  to  protect  some  one  individual,  or  some 
two  or  three  individuals,  it  is  nothing  more  nor  less  than  class 
legislation. 

Now,  Mr.  Chairman,  the  only  argument,  as  it  seems  to  me,  that 
has  been  or  can  be  made  in  support  of  this  provision,  in  excepting 
judges  from  this  provision,  is  that  it  is  a  breach  of  good  faith  on  the 
part  of  the  State,  because  these  judges  accepted  the  office  on  the 
implied  agreement  or  understanding  that  the  salary  or  pension 
would  be  continued. 

Now,  sir,  I  propose  to  discuss  for  a  few  moments,  if  this  body 
will  bear  with  me  —  we  have  had  so  much  discussion  here  to-day 
that  it  is  almost  impossible  to  get  attention  —  I  propose  to  discuss 
the  history  of  this  legislation  which  led  up  to  the  granting  of  pen- 
sions. At  the  time  of  the  adoption  of  the  present  article  in  the 
Constitution  that  I  am  discussing,  the  people  themselves,  the  judges 
themselves,  did  not  believe  that  any  judge  elected  to  these  offices 
could  hold  or  get  a  pension  beyond  four  years.  That  was  the 
understanding  of  the  people  of  this  State,  of  the  courts  and  the 
judges  down  to  1891.  Not  a  single  judge  that  you  are  seeking 
to  protect  here,  with  the  possible  exception  of  one,  has  been 
elected  since  1891,  and  comes  within  the  provision  of  this  exception. 
Therefore,  there  can  be  no  breach  of  good  faith,  if  my  proposition 
is  correct  in  that  respect,  because  each  one  of  them  that  then 
accepted  the  office  did  not  believe  that  he  could  draw  a  pension  to 
exceed  four  years. 


1 126  REVISED  RECORD.  [Wednesday, 

Now,  let  us  see  if  I  am  not  correct  in  my  statement  that  that 
was  supposed  to  be  the  law.  In  1884  or  1885  there  was  in  this 
judicial  district  in  which  is  located  this  capitol,  a  justice  of  the 
Supreme  Court,  who  was  a  candidate  for  re-election,  and  the  objec- 
tion was  then  made  to  his  re-election  that  if  he  was  re-elected,  he 
could  serve  but  seven  years  of  the  term  for  which  he  was  to  be 
re-elected,  and  so  much  force  was  recognized  in  that  argument, 
Mr.  Chairman,  that  the  Attorney-General  of  this  State  was  applied 
to  for  an  opinion,  and  he  wrote  an  opinion  upon  the  subject,  hold- 
ing distinctly,  fairly  and  squarely,  that  under  no  circumstances, 
under  this  provision,  could  a  judge  draw  a  pension  to  exceed  four 
years.  That  opinion  was  upheld  by  rnany  of  the  prominent  lawyers 
of  this  district,  was  circulated  broadcast  and  put  into  the  hands  of 
the  voter,  and  he  was  elected.  He  went  on  the  bench  and  served 
seven  years,  and  afterwards  went  into  retirement,  and  is  now  and 
will  continue  to  draw  a  pension  for  the  balance  of  his  term,  if  he 
lives. 

About  the  same  time,  in  the  Fourth  Judicial  District,  there  was 
a  judge  who  was  a  candidate  for  re-election,  and  the  same  objection 
was  made  to  him,  that  if  he  was  re-elected  to  this  office,  he  could 
serve  but  seven  years,  and  at  the  expiration  of  the  seven  Vears 
he  would  retire  from  the  bench  and  draw  this  pension  for  the 
balance  of  the  term.  About  this  time  there  was  submitted  to  the 
Board  of  Claims  of  this  State  this  question  of  whether  a  judge  could 
draw  a  pension  for  more  than  four  years,  and  in  the  case  of  Smith 
against  the  State,  the  Board  of  Claims  unanimously  decided  that  no 
judge  could  draw  a  pension  to  exceed  four  years.  That  decision 
of  the  Board  of  Claims,  with  a  circular,  was  sent  broadcast  in  the 
Fourth  Judicial  District,  and  the  judge  was  renominated  and 
re-elected.  Notwithstanding  that  fact,  he  has  since  retired  by  rea- 
son of  age,  and  has  been  and  is  now,  and  will  for  several  years  to 
come,  draw  a  pension  under  this  provision. 

Now,  whether  or  not  the  opinion  of  the  Attorney-General  and  the 
decision  of  the  Board  of  Claims  was  correct  on  this  subject,  it  was 
finally  submitted  to  the  Supreme  Court,  and  the  Supreme  Court, 
sitting  at  General  Term,  unanimously  decided  that  a  judge  could 
not  draw  a  pension  to  exceed  four  years  of  the  fourteen. 

Now,  Mr.  Chairman,  that  was  the  condition  of  the  law  of  this 
State.  Every  judge  sitting  upon  the  bench  to-day  that  will  draw 
a  pension,  every  one  of  them  when  he  accepted  his  office  knew  that 
that  was  the  law,  and  that  continued  to  be  the  law  of  this  State 
until  January  or  February,  1891.  In  January,  1891,  the  question 
finally  came  before  the  Court  of  Appeals  of  this  State.  The  Court 


August  22.]  CONSTITUTIONAL  CONVENTION.  1127 

of  Appeals  passed  upon  the  question,  three  of  the  judges  voting  one 
way,  and  three  the  other.  Thus  the  matter  stood.  January  i, 
1891,  a  present  member  of  the  Court  of  Appeals  entered  upon  his 
term  of  fourteen  years  of  office.  The  question  was  submitted  to 
that  court  a  few  days  after  he  entered  upon  his  term,  and  the  ques- 
tion whether  or  not  a  judge  could  draw  this  pension  for  four  years 
or  more  was  an  important  one  to  be  decided  by  that  body.  If  it 
was  decided  that  a  judge  could  not  draw  a  pension  unless  he  had 
served  ten  years  of  his  term  which  was  abridged,  then  the  judge 
who  entered  upon  the  term  of  office  on  the  ist  of  January,  1891, 
could  draw  nothing.  If  the  other  construction  was  given,  that  a 
judge  could  draw  a  pension  if  he  had  served  upon  the  bench  any 
time  during  his  life,  ten  years,  then  he  could  draw  a  pension.  In 
other  words,  it  made  a  difference  to  that  judge,  if  he  lived,  of 
$120,000.  Now,  he  saw  fit  — and  I  am  not  here  to  criticise  his 
action,  he  may  have  been  right;  but  I  am  only  here  to  relate  the  his- 
tory of  that  law  —  to  cast  his  vote  with  the  three  that  said  ten  years 
upon  the  bench  at  any  time,  and  not  of  the  term,  was  the  correct 
construction,  and  by  that  vote  put  into  his  pocket,  if  he  lives, 
$120,000. 

Now,  Mr.  Chairman,  I  do  not  believe,  in  view  of  the  history 
relating  to  this  provision,  that  the  argument  of  good  faith  is  entitled 
to  very  much  consideration. 

Now,  for  another  reason,  which  seems  to  me  equally  as  forcible 
as  this  one,  the  question  of  good  faith  does  not  apply.  We  say  to 
the  ordinary  man,  in  all  the  varied  and  extraordinary  relations  in 
life,  that  he  is  bound  to  know  the  law.  We  go  upon  that  principle ; 
we  punish  men;  we  subject  them  to  fines  and  imprisonment, 
because  they  are  bound  to  know  the  law.  Now,  every  one  of  these 
judges,  when  they  accepted  office,  was  bound  to  know  that  the 
people  in  their  sovereign  capacity,  might  not  only  reduce  the  sala- 
ries, but  abolish  the  office  itself.  We  have  the  power  here  to 
abolish  the  office.  We  have  the  power  here  to  reduce  salaries,  and 
when  each  one  of  those  judges  accepted  office,  he  did  so  knowing 
that  there  was  in  the  people  of  this  State  the  power  either  to 
abolish  the  office  or  reduce  the  salary. 

Now,  Mr.  Chairman,  the  Judiciary  Committee  must  have  reached 
either  one  of  two  conclusions  in  reporting  this  section;  either  that 
this  pension  was  given  as  a  gratuity,  and  if  so,  np  argument  need 
be  made  as  to  our  right  to  wipe  it  out;  or  the  salary  of  the  office 
is  sufficient  for  the  services  performed  without  the  pension.  If  the 
salaries  are  not  sufficient,  then  let  the  present  provision  in  the 
Constitution  stand  as  it  is.  It  seems  to  me  that  if  we  vote  three  or 


1 128  REVISED  RECORD.  [Wednesday, 

four  men  a  half  million  of  dollars,  we  will  be  subjecting  ourselves  to 
severe  criticism.  It  is  class  legislation.  Nothing  less  and  nothing 
more.  I  sincerely  hope  it  will  be  stricken  out. 

Mr.  Cookinham  —  Mr.  Chairman,  I  most  heartily  concur  in 
many  things  that  have  been  said  by  the  gentleman  from  Essex 
(Mr.  McLaughlin).  I  am  opposed  upon  principle  to  pensions.  I 
should  vote  against  pensioning  any  officer  or  any  person,  except 
those  who  have  performed  military  or  naval  service,  if  the  question 
were  before  us  now  in  that  shape.  But,  Mr.  Chairman  and  gen- 
tlemen, it  is  not.  We  are  here  to  pass  upon  two  questions  as  pre- 
sented by  the  Judiciary  Committee;  one  a  question  of  law,  the 
other  a  question  of  expediency.  It  is  not  within  the  power  of  this 
Convention  to  affect  many  of  the  judges  who  have  drawn  and  who 
will  draw  what  is  called  a  pension.  All  those  judges  are  to-day 
receiving  what  is  not,  strictly  speaking,  a  pension.  It  is  compen- 
sation for  services  performed,  and  is  known  as  such  to  the  courts. 
As  to  those  judges,  this  Convention  has  no  power  by  a  constitu- 
tional amendment  to  affect  them  in  the  slightest.  The  Supreme 
Court  of  the  United  States  has  said  that  where  an  officer  performs 
a  service  for  the  State,  and  that  service  is  completed,  and  a  com- 
pensation has  been  attached  to  that  office,  even  by  constitutional 
amendment,  the  State  cannot  affect  it.  So  that  as  to  every  judge 
who  to-day  is  drawing  this  compensation  by  virtue  of  the  existing 
Constitution,  our  hands  are  tied.  We  cannot  affect  them.  As  to 
certain  other  judges,  those  that  have  been  elected,  and  who  will 
become  seventy  years  of  age  before  this  Constitution  goes  into  effect, 
having  served  ten  years,  we  cannot  affect  them  by  any  act  of  ours. 
The  distinction  drawn  by  the  Supreme  Court  of  the  United  States 
is,  that  where  the  contract  is  executed,  we  cannot  affect  them. 
Where  it  is  executory,  we  may  affect  them.  That  leaves  the  Con- 
vention in  this  condition.  If  we  should  repeal  the  existing  provision 
of  the  Constitution,  there  are  certain  judges,  or  at  least  one  judge, 
that  would  receive  $120,000  should  he  live.  There  are  other  judges 
who  have  performed  longer  service  and  would  receive  nothing. 
Now,  as  for  me,  Mr.  Chairman,  I  believe  upon  the  question  of 
expediency  this  Convention  should  keep  the  utmost  good  faith  with 
the  gentlemen  who  occupy  these  high  offices.  I  do  not  believe  the 
State  of  New  York  could  do  a  worse  act  than  in  spirit,  if  not  in  the 
letter,  to  repudiate  a  contract.  I  confess,  Mr.  Chairman,  that  a 
gentleman  upon  this  floor  who  disagrees  with  this  committee  upon 
this  proposition  may  do  so  just  as  conscientiously  as  I  may  believe 
or  as  this  committee  may  believe,  as  the  vast  majority  of  this  com- 
mittee do  believe,  upon  this  proposition.  Now,  it  is  not  so  serious 


August  22.]  CONSTITUTIONAL  CONVENTION.  1129 

a  matter  as  has  been  presented  to  us,  in  my  opinion,  and  I  have 
endeavored  by  the  figures  given  us  by  the  gentleman  from  Herki- 
mer  (Mr.  Steele),  and  by  investigation,  to  ascertain  just  exactly 
what  there  is  involved,  and  for  the  information  of  those  who  have 
not  examined  it,  I  will  endeavor  to  state  it.  In  the  Court  of 
Appeals,  there  is  but  one  judge  who  may  be  affected  by  our  act. 

Mr.  A.  H.  Green  —  Who  is  it? 

Mr.  Cookinham  —  The  chief  judge  of  the  Court  of  Appeals, 
should  he  live,  will  'draw  a  pension  for  nine  years.  It  will  be 
$12,500  per  year,  and  he  will,  therefore,  should  he  live,  draw 
$112,500.  But  I  have  examined  the  Northampton  table  to  see 
what  the  probabilities  of  life  are  of  a  person  seventy  years  of  age, 
and  I  find  it  to  be  six  years  and  twenty-three  one-thousandths  of  a 
year,  so  the  probability  is  that  this  judge  would  draw  it  for  six  years 
instead  of  nine. 

In  the  First  Judicial  Department  no  judge  is  affected  by  this 
provision,  and  there  is  no  judge  who  will  draw  a  pension,  pro- 
vided we  pass  the  section  as  reported  by  the  committee. 

In  the  Second  District  there  are  three  judges  who  will  draw  a 
pension.  One  of  them,  should  he  live,  will  draw  $43,200,  one  will 
draw  $50,400,  and  the  other  $50,400,  should  they  live,  but  the  prob- 
abilities of  life  are  against  them. 

In  the  Third  District  there  is  but  one  judge  that  can  ever  draw 
this  pension,  and  he  for  five  years. 

In  the  Fourth  District  there  is  but  one  judge  who  can  draw  the 
pension,  and  that  for  only  one  year. 

In  the  Fifth  Judicial  District  there  is  no  judge  that  can  draw 
a  pension,  although  there  are  two  judges  in  this  district  that  will 
serve,  if  they  live,  twenty-eight  years  as  justices  of  the  Supreme 
Court,  and  can  draw  no  pension. 

In  the  Seventh  District  there  are  two.  One  of  them  can  draw  for 
three  years,  or  $21,600,  and  the  other  for  five  years,  or  $36,000. 

In  the  Eighth  District  there  are  but  two  judges  that  can  ever 
be  affected  by  this  provision  of  the  Constitution.  One  of  them 
can  draw  the  salary  for  one  year,  the  other  for  six  years. 

Now,  Mr.  Chairman,  the  total  amount  involved  in  this  propo- 
sition, as  near  as  I  have  been  able  to'ascertain,  is  $406,900,  assuming 
that  every  judge  lives  to  the  utmost  limit  and  draws  the  last  dollar 
that  he  can  by  any  possibility  draw  from  the  State,  the  State  will 
pay  $406,900.  Mr.  Chairman  and  gentlemen,  shall  this  Convention, 
made  up  so  largely  of  lawyers,  made  up,  as  I  believe,  of  men  who 
desire  to  uphold  the  high  honor  of  this  great  State,  shall  we  per- 
petrate one  single  act  that  can  be  construed  as  reflecting  in  the 


1130  REVISED  RECORD.  [Wednesday, 

slightest  upon  the  honor  of  this  great  State?  I  confess,  gentlemen 
of  the  Convention,  that  I  would  be  most  happy  could  I  see  my 
way  clear  to  vote  to  take  away  from  every  civil  officer  that  which 
is  called  a  pension;  but  I  cannot  see  it  that  way,  and  I  hope  that 
this  committee  will  adopt  the  report  and  accept  the  amendment  as 
presented  by  the  Judiciary  Committee,  and  save,  as  I  believe,  the 
honor  of  the  State 

Mr.  Moore  —  Mr.  Chairman,  it  has  seemed  to  me  that  if  we 
are  to  adopt  this  provision,  entailing  upon  the  State  four  hundred 
odd  thousand  dollars,  that  in  order  to  make  a  still  further  saving 
to  the  State,  we  had  better  incorporate  into  this  section  the  North- 
ampton table,  and  make  it  a  part  of  the  Constitution,  so  that,  if 
it  is  possible,  we  may  shorten  the  amount  of  pensions  to  be  paid  to 
these  judges.  I  am  very  much  in  favor  of  Judge  Mclaughlin's 
amendment,  Mr.  Chairman.  I  believe  that  it  is  right.  I  believe 
it  is  for  the  interests  of  the  State.  While  I  am  as  much  in  favor  of 
saving  the  honor  of  the  State  as  my  friend  from  Utica  (Mr.  Cook- 
inham)  is,  I  am  also  in  favor  of  saving  the  money  of  the  people 
of  the  State.  Mr.  Chairman,  I  am  opposed  to  civil  pensions.  I  do 
not  believe  in  them  in  this  country.  I  do  not  believe  it  is  the  thing 
to  do  in  a  republic,  to  create  a  favored  class,  even  if  they  are 
the  judges  of  the  highest  court  in  this  State;  and,  therefore,  with 
great  regret,  for  I  have  most  profound  respect  for  the  talent  and 
ability  of  my  friend  from  Oneida,  I  must  oppose  his  views  on  this 
subject.  It  seems  to  me  that  it  is  a  good  time  now  for  this  Con- 
vention to  call  a  halt  upon  these  expenditures,  and,  therefore,  I 
heartily  support,  in  these  few  remarks,  the  motion  of  my  colleague 
from  Essex  county  (Judge  McLaughlin),  to  strike  out  the  lines  which 
he  suggests  in  his  amendment,  and  I  will  yield  the  floor  to  any 
other,  gentleman  who  wishes  to  make  one-minute  speeches,  as  I 
have,  until  the  adjournment  of  the  Convention. 

Mr.  Barhite  —  Mr.  Chairman,  the  gentleman  from  Oneida  (Mr. 
Cookinham)  says  that  he  does  not  look  upon  this  as  a  pension, 
but  as  a  compensation  for  services  rendered.  Now,  if  that  is  true, 
if  that  is  the  proper  way  to  look  at  this  matter,  then  the  State  of 
New  York  is  now  doing,  and  has  been  doing  for  years  past,  not 
only  a  great  injustice  to  these  gentlemen  who  will  draw  a  pension, 
but  also  to  the  other  justices  of  the  Supreme  Court  and  the  judges 
of  the  Court  of  Appeals  who  will  not  draw  any  pensions.  It  is 
an  admission,  Mr.  Chairman,  that  the  State  of  New  York  is  not 
paying  those  judges  and  those  justices  a  sufficient  salary  for 
their  services.  It  is  an  admission  on  our  part  that  the  salary 
of  the  judges  and  the  justices  is  so  small  that  we  are  obliged 


August  22.]  CONSTITUTIONAL  CONVENTION.  1131 

to  continue  them  for  a  number  of  years  after  they  cease  to  render 
any  actual  service.  Now,  do  we  want  to  take  that  position?  Do 
we  want  to  say  to  the  people  of  the  State  of  New  York  that  we 
will  not  pay  them  for  their  services  while  they  are  actually  render- 
ing them,  but  we  will  pay  them  less  than  they  deserve  and  con- 
tinue their  pay  for  a  few  years  longer?  That  is  the  legitimate 
conclusion  of  an  argument  of  that  kind. 

Now,  Mr.  Chairman,  there  seems  to  be  a  very  tender  feeling 
in  this  Convention  towards  the  judges 

First  Vice-President  Alvord  took  the  chair  and  announced  that, 
as  the  hour  of  five  o'clock  had  arrived,  the  Convention  stood  in 
recess  until  eight  o'clock  in  the  evening. 


EVENING  SESSION. 
Wednesday  Evening,  August  22,  1894. 

The  Constitutional  Convention  of  the  State  of  New  York  met, 
pursuant  to  adjournment,  in  the  Assembly  Chamber  in  the  Capi- 
tol, at  Albany,  N.  Y.,  Wednesday,  August  22,  1894,  at  eight  o'clock 
P.  M. 

First  Vice-President  Alvord  called  the  Convention  to  order. 

Mr.  Acker  resumed  the  chair  in  Committee  of  the  Whole,  on  the 
matter  pending  when  recess  was  taken. 

The  Chairman  —  The  Convention  is  still  in  Committee  of  the 
Whole  on  general  order  No.  45,  and  the  gentleman  from  Monroe 
(Mr.  Barhite)  has  the  floor. 

Mr.  Barhite  —  Mr.  Chairman,  when  the  descending  gavel  wielded 
by  the  strong  right  arm  of  my  friend  from  Onondaga  closed  my 
remarks,  I  believe  I  was  speaking  of  the  tender  regard  with  which 
the  justices  and  judges  of  the  State  seem  to  be  regarded  by  some 
of  the  members  of  this  Convention.  In  referring  to  the  gentle- 
men who  are  just  a  little  lower  than  the  angels,  who  are  clothed 
with  glory  and  honor  and  draw  pay  at  the  rate  of  $7,200  per  year, 
they  seem  to  speak  with  bated  breath,  as  though  they  were  refer- 
ring to  people  living  under  different  Constitutions  and  with  differ- 
ent rights  from  the  rest  of  the  people  of  the  State  of  New  York. 
Mr.  Chairman,  I  do  not  want  to  be  understood  as  saying  anything 
against  the  judiciary  of  this  State.  I  believe  that  a  proper  and 
wholesome  regard  for  the  judges  of  the  State  is  just,  and  should 
be  indulged  in  by  every  citizen;  but  at  the  same  time,  when  we 
are  considering  a  question  of  this  kind  I  do  not  understand  why 


1 132  REVISED  RECORD.  [Wednesday, 

the  statutes  that  pertain  to  them  and  their  compensation  should 
be  considered  in  any  different  light  from  the  statutes  for  compen- 
sation or  the  rights  which  refer  to  the  humblest  citizen  of  the 
State. 

The  gentleman  from  Oneida  says  that  we  should  not  pass  this 
proposed  amendment  because  certain  of  those  rights  we  cannot 
interfere  with,  and  if  in  order,  I  would  like  to  ask  the  gentleman 
where  he  gets  his  authority  for  that  statement,  so  that  we  may 
strictly  understand  each  other.  I  do  not  know  where  he  gets  his 
authority,  but  possibly  he  gets  it  from  a  decision  in  the  n6th 
United  States  Court  Reports,  a  small  portion  of  the  opinion  of 
which  I  desire  to  read  to  this  committee,  but  a  single  paragraph: 

"We  do  not  assert  the  proposition  that  a  person  elected  to  an 
office  for  a  definite  term  has  any  such  contract  with  the  government 
or  with  the  appointive  body  as  to  prevent  the  Legislature  or  other 
proper  authority  from  abolishing  the  office  or  diminishing  its 
duration  or  removing  him  from  office.  So,  though  when  appointed 
the  law  has  provided  a  fixed  compensation  for  his  services,  there 
is  no  contract  which  forbids  the  Legislature  or  other  corporate 
body  to  change  the  rate  of  compensation  or  salary  for  services 
after  the  change  is  made,  though  this  may  include  a  part  of  the 
term  of  the  office  then  unexpired." 

Our  present  Constitution  provides  that  every  judge  of  the  Court 
of  Appeals  and  every  justice  of  the  Supreme  Court,  whose  term  of 
office  shall  be  abridged  pursuant  to  this  provision,  and  who  shall 
have  served  as  such  judge  or  justice  ten  years  or  more,  shall  be 
continued  during  the  remainder  of  the  term  for  which  he  was 
elected.  Now,  I  say  that  when  a  justice  or  a  judge  of  the  Court 
of  Appeals  is  elected  under  the  provisions  of  the  statute,  and  on 
account  of  his  age  will  be  able  to  serve  but  ten  years  of  that 
term,  that  justice's  term  is  not  more  than  ten  years  by  statute  any 
more  than  the  justice  who  ordinarily  might  be  permitted  to  serve 
fourteen  years,  who  was  not  so  old.  And  this  case  in  the  Supreme 
Court  of  the  United  States  simply  holds  that  any  person  who  has 
performed  certain  services,  can  get  paid  for  those  services  from 
the  public  body,  the  State  or  the  city  which  may  have  engaged 
him.  But  the  Constitution  of  the  State  of  New  York  provides 
simply  that  his  salary  shall  be  continued.  It  is  not  pay  for  past 
services,  it  is  simply  continuing  his  compensation.  And  reading 
that  case  and  the  Constitution  of  the  State  of  New  York  together, 
I  am  not  so  certain  as  has  been  asserted  upon  the  floor  of  this 
Convention,  that  there  is  any  judge  or  justice  of  this  court  who, 


August  22.]  CONSTITUTIONAL  CONVENTION.  1133 

as  a  matter  of  law,  can  claim  compensation  for  the  balance  of  his 
term. 

But  leaving  that  question.  Assume,  if  you  please,  that  there  are 
some  judges  who  have  a  legal  right  to  the  money  of  the  State  after 
their  term  of  office  may  be  abridged.  It  is  unquestionable  under 
this  same  decision,  that  there  are  certain  judges  who  are  not 
entitled  to  that  compensation  after  their  term  is  abridged,  who 
can  be  cut  off  the  moment  they  cease  their  duties  to  the  State 
and  are  not  entitled  to  receive  another  dollar  from  the  State  of 
New  York.  In  other  words  they  have  not  a  legal  right.  They 
have  what,  perhaps,  may  be  called  a  moral  right,  possibly  an 
equitable  right,  although  not  an  equitable  right  in  the  legal  sense 
of  that  term. 

Now,  did  these  gentlemen,  when  they  were  elected  to  office, 
consent  to  become  candidates  without  any  regard  for  the  compen- 
sation which  they  were  to  receive?  If  they  say,  "  bear  in  mind 
that  when  we  took  the  office  of  judge  of  the  Court  of  Appeals,  or 
justice  of  the  Supreme  Court,  part  of  the  consideration  for  taking 
that  office  was  the  fact  that  we  might  receive  our  salary  for  one, 
two  or  three  years  after  our  service  had  ceased;"  if  they  take  that 
ground,  then  upon  what  ground  can  they  come  to  the  people  of 
the  State  now  and  say,  you  should  not  abridge  our  salary?  If 
that  was  not  part  of  the  consideration  upon  which  they  entered 
into  the  service  of  the  State,  what  ground  have  they  now  to  come 
and  ask  the  people  of  the  State  to  continue  the  compensation 
after  their  term  has  ceased?  On  the  other  hand,  if  they  say  that 
was  part  of  the  consideration;  that  when  they  consented  to  take  this 
office,  they  had  in  mind  the  fact  that  they  would  receive  a  pension 
or  compensation,  whichever  you  are  pleased  to  call  it,  after  they 
ceased  to  perform  the  duties  of  their  office,  then  they  intimate 
to  you  that  they  expected  to  receive  money  of  the  State  for  which 
they  never  expected  to  perform  any  service.  They  tell  you  that 
they  expected  to  receive  pay  for  the  time  they  actually  performed 
the  duties  of  their  office,  but  that  after  that  they  expected  to  get 
pay  for  doing  nothing  at  all. 

Mr.  Chairman,  if  they  take  that  position,  and  if  they  come  into 
this  body  or  before  the  people  of  the  State  of  New  York  and  say: 
"We  want  you  to  continue  our  pay;  we  desire  this  pension  which 
the  Constitution  at  present  gives  us"  —  then  we  say  to  them:  "You 
tell  us  that  you  expected  to  receive  the  money  of  the  State  without 
rendering  any  service  therefor,  and  if  you  want  equity  you  must 
come  into  court  with  clean  hands."  When  the  judges  of  the  Court 
of  Appeals  of  this  State  decided  that  the  ten  years'  service  which 


1 134  REVISED  RECORD.  [Wednesday, 

would  entitle  any  judge  or  justice  to  the  pension  allowed  by  the 
Constitution  (it  need  not  necessarily  be  ten  years  of  service  within 
any  one  term),  they  stood  strictly  and  solely  upon  their  legal  rights. 
There  was  nothing  in  their  minds  in  regard  to  the  rights  of  or  justice 
to  the  people  of  the  State  of  New  York.  They  stood  before  us 
as  any  suitor  stands  in  any  court  of  law,  and  they  said :  "  We  demand 
what  is  ours  as  a  matter  of  law."  There  was  nothing  in  their 
opinion,  nothing  in  the  decision  which  they  rendered  that  would 
lead  us  to  think  they  had  in  mind  anything  more  than  that  strict 
legal  right  which  they  said  they  had  under  the  Constitution  and 
the  statutes  of  this  State.  Further  than  that,  when  the  courts  of 
this  State  decided  that  a  justice  whose  term  was  abridged  was 
entitled  not  only  to  the  $6,000  salary  which  the  State  paid  him  for 
his  service,  but  that  he  was  also  entitled  to  the  $1,200  which  had 
been  given  him  by  statute  to  pay  his  expenses  in  going  from  city 
to  city  and  from  town  to  town,  to  make  him  even  on  his  hotel 
bills,  his  railroad  fare  and  other  necessary  expenses;  then  again 
they  stood  strictly  upon  their  legal  rights.  They  stood  upon  the 
statutes  and  the  Constitution  of  the  State  and  they  said:  "We 
demand  this  as  a  matter  of  law."  We  never  find  a  judge  or  a  jus- 
tice of  the  Supreme  Court  or  of  the  Court  of  Appeals,  in  any 
decision  which  affects  the  interest  of  the  court,  taking  any  other 
or  different  stand  from  that  which  I  have  indicated.  And  so  why 
should  we  here,  at  this  time,  stand  before  the  people  of  the  State 
and  say,  on  moral  grounds,  that  the  judges  who  went  into  office 
expecting  to  receive  a  pension  should  be  continued?  The  State 
of  New  York  is  large  and  wealthy.  It  can  afford  to  be  just,  it  can 
afford  to  be  generous,  but  further  than  that  we,  as  the  represen- 
tatives of  the  State  of  New  York,  should  not  go. 

One  further  consideration  and  I  am  done.  According  to  the 
provisions  of  this  section  which  have  been  adopted  thus  far,  we 
are  to  give  the  people  of  the  State  twelve  additional  justices  of 
the  Supreme  Court.  By  that  part  of  the  section  which  consolidates 
the  Superior  Courts,  the  City  Courts  and  other  courts,  after  the 
present  terms  of  the  judges  of  those  courts  have  expired,  their 
successors  are  to  be  elected  as  justices  of  the  Supreme  Court. 
That  will  give  to  the  people  of  the  State  of  New  York  something 
like  thirty  additional  justices  of  the  Supreme  Court.  And  I,  for 
one,  sir,  do  not  feel  willing  to  go  to  the  people  of  this  State  and 
say:  "  We  consider  that  you  must  have  thirty  additional  justices  " — 
and  I  will  say  I  speak  of  them  because  their  salaries  will  not  be 
paid  from  particular  localities  which  receive  a  special  benefit  for 
their  services,  but  from  the  treasury  of  the  entire  State.  I  do  not 


August  22.]  CONSTITUTIONAL  CONVENTION.  1135 

feel  like  going  before  the  people  of  the  State  of  New  York  and 
saying,  "  We  shall  ask  you  to  pay  for  thirty  additional  justices  of 
the  Supreme  Court  and  at  the  same  time  pay  out  $406,000  in 
pensions,  for  which  not  a  dollar  of  service  has  been  rendered." 

I  hope,  Mr.  Chairman,  that  the  amendment  of  the  gentleman 
from  Essex  will  prevail. 

Air.  Cady  —  Mr.  Chairman,  I  do  not  think  that  the  question 
which  is  presented  in  the  amendment  offered  by  the  gentleman 
from  Essex  (Mr.  C.  B.  McLaughlin)  is  entirely  to  be  disposed  of, 
or  entirely  to  be  considered,  under  cold  rules  of  law,  although 
I  have  little,  if  any,  doubt  as  to  the  absolute  correctness  of  the 
decision  and  the  report  of  the  Judiciary  Committee  upon  that  sub- 
ject, if  that  report  and  that  conclusion  should  be  judged  by 
those  standards.  The  delegate  from  Essex  (Mr.  McLaughlin),  in 
introducing  his  amendment,  expressed  some  doubt  and  some 
curiosity  as  to  the  methods  by  which  the  Judiciary  Committee 
arrived  at  the  conclusion  it  reached,  and  some  doubt  and  some 
curiosity  as  to  the  motives  which  animated  the  committee  in 
reaching  that  conclusion  and  submitting  the  proposition  con- 
tained in  its  report.  The  answer  to  all  his  questions  is  a  ready 
one,  arid  I  think  it  ought  to  be  a  satisfactory  one.  The  sole  pur- 
pose of  the  Judiciary  Committee  in  reaching  that  conclusion  and 
reporting  that  amendment  was  to  do  absolute  justice  between  the 
State  of  New  York  and  the  judges  of  its  courts,  who  are,  by  virtue 
of  existing  constitutional  provisions  and  the  decisions  of  the  courts, 
to  a  certain  extent,  interested  in  the  subject.  I  do  not  believe 
that  this  Convention  will  have  to  consider,  at  all  events  during  the 
remainder  of  its  session,  any  question  which  involves  higher  moral 
grounds  than  this  question  involves.  I  believe  that  it  is  disasso- 
ciated and  differentiated  from  all  sentiment,  and  that  it  involves 
purely  a  question  of  State  honor  and  State  dignity.  The  amount 
of  money  which  is  involved  in  the  matter  may  be  large  in  a  certain 
sense,  but  in  another  sense  it  is  small  and  trifling,  when  compared 
with  the  great  wealth  and  the  great  resources  of  this  State.  But 
the  size  of  that  sum  is  of  no  moment  in  the  due  consideration  of 
this  question  upon  its  exact  merits.  Under  the  old  dispensation, 
before  the  principles  which  prevail  in  this  State  and  in  this  republic 
had  been  born  and  reached  their  fruition,  the  king  was  the  fountain 
of  power  and  the  fountain  of  honor.  Under  the  new  dispensation 
of  republican  government,  the  people  are  the  fountain  of  power 
and  the  fountain  of  honor,  and  their  honor  ought  to  be  more  dear 
and  precious  to  them  in  every  view  of  the  case  than  their  power  can 
possibly  be.  We  stand  here  representing  the  people  of  the  State 


1136  REVISED  RECORD.  [Wednesday, 

of  New  York  in  the  loftiest  capacity  in  which  any  body  of  men 
can  represent  them.  We  are  here  in  the  Capital  City  of  the  State, 
and  we  are  here  in  the  building  which  is  the  heart  of  the  power  and 
sovereignty  of  the  State,  and  I  sincerely  trust  that  this  Convention 
will  not  go  forth  from  the  performance  of  its  duties,  after  doing 
any  act  which  directly  or  indirectly  leaves  any  blot  or  stain  upon 
the  escutcheon  of  this  State.  There  is  one  thing  which  every 
citizen  of  New  York  can  say  to  the  world  and  never  blush  in  saying, 
and  that  is  that  this  great  State,  the  Empire  in  every  sense,  of  the 
Union,  has  never  repudiated  a  single  dollar  of  obligation,  has  never 
violated  any  of  its  duties  to  any  of  its  citizens  or  any  of  its  sister 
States.  I  do  not  believe  that  this  Convention,  misled  by  any  false 
notions  of  economy,  is  prepared  to  place  a  blot  upon  that  escutch- 
eon or  to  change  the  record  by  one  jot  or  tittle.  The  honor  of 
the  State  is  pledged  in  this  matter.  It  is  pledged  by  virtue  of  a 
constitutional  provision  which  has  existed  for  many  years.  It  is 
pledged  further  by  the  decisions  of  its  courts  of  justice.  There  have 
been  some  insinuations  by  gentlemen  who  have  indulged  in  some 
discussion  of  this  amendment  which  might  lead  one  uninformed 
on  the  subject  to  the  conclusion  that  there  had  been  a  deliberate 
conspiracy  on  the  part  of  the  judges  of  the  Court  of  Appeals  in  this 
State  to  put  the  money  in  their  pockets  by  rendering  a  decision 
which  had  no  foundation  in  law  or  in  morality.  Now,  what  is  the 
genesis  of  that  decision  in  the  people  on  the  relation  of  Gilbert 
against  Wemple,  as  reported  in  i25th  N.  Y.?  Gentlemen  would 
seem  to  suggest  that  the  judges  of  the  Court  of  Appeals  and  those 
judges  of  the  Court  of  Appeals  who  were  interested  in  the  matter 
were  the  only  ones  who  had  anything  to  do  with  the  establishment 
of  the  principle  which  is  embodied  in  that  decision.  There  are 
seven  judges  of  the  Court  of  Appeals,  and  there  were  seven  judges 
when  that  decision  was  rendered;  four  of  them  united  in  making 
it,  and  three  of  them  dissented  from  it;  but  prior  to  that  time  the 
question  had  been  considered.  The  original  order  in  the  case  was 
made  by  a  justice  of  the  Supreme  Court,  who,  for  caution,  pru- 
dence, intelligence  and  integrity  of  character,  stands  the  equal 
of  any  justice  in  this  State.  I  refer  to  the  Honorable  Samuel 
Edwards,  of  Columbia.  He  made  that  order  in  September,  at  the 
Special  Term  in  Columbia,  directing  that  a  writ  of  mandamus  issue 
upon  the  application  of  Judge  Gilbert.  That  decision  of  itself 
stands  for  something  because  it  was  rendered  by  a  man  who, 
by  no  possibility,  could  take  advantage  of  any  benefits  to  the 
judiciary  flowing  from  it  by  reason  of  his  age.  From  his  decision 
it  went,  on  the  appeal  of  the  Attorney-General,  to  the  General  Term 


August  22.]  CONSTITUTIONAL  CONVENTION.  1137 

of  the  Third  Department,  and  there  it  was  passed  upon   by   a 
majority  of  that  General  Term.    Judge  Learned  did  not  vote  upon 
the  rendition  of  the  decision,  but  Judge  Landon  and  Judge  May- 
ham  united  in  the  affirmance  of  Mr.  Justice  Edwards's  order.    From 
that  decision  of  the  General  Term  it  went  to  the  Court  of  Appeals, 
and  there,  as  I  have  said,  four  judges  united  in  the  affirmance  of  the 
Special  Term  and  the  General  Term,  and  three  judges  dissented 
from  it.     Now,  without  the  official  action  of  the  judge   of  the 
Court  of  Appeals,  who  has,  by  indirection,  been  referred  to  here 
as  most  largely  interested  in  the  matter,  the  Court  of  Appeals  would 
have  been  equally  divided  upon  the  question,  three  would  have 
been  in  favor  of  affirmance  and  three  in  favor  of  reversal.     That 
judge  of  the  Court  of  Appeals  was  left  between  the  two.     Now, 
what  was  his  duty  under  all  the  circumstances  of  the  case?    Was 
it  his  duty  to  vote  or  not  to  vote?     Was  it  his  duty  to  express 
his  opinion  in  an  action  between  a  citizen  of  the  State  of  New 
York  or  the  people  on  the  relation  of  a  citizen  and  the  State  of 
New  York  as  represented  by  Mr.  Wemple,  the  Comptroller,  or 
was  it  his  duty  to  decide,  to  act  upon  the  question  thus  presented, 
regardless  of  its  effect  upon  himself,  just  as  a  judge  should  act  in 
a  case  between  third  parties,  regardless  of  its  effect,  beneficially  or 
detrimentally  to  himself?     It  seems  to  me  that  there  can  be  no 
criticism  based  upon  the  action  of  that  judge,  because   without 
his  action  it  would  have  stood  affirmed,  and  nothing  that  he  did, 
no  decision  which  he  united  in,  or  no  act  of  his  in  uniting  in  it, 
tended  to  change  the  result  in  any  sense  so  far  as  he  was  person- 
ally concerned.     I  do  not  think  that  the  judges  of  the  Court  of 
Appeals  upon  that  question  or  any  other  need  defense.     I  do  not 
hold  a  brief  for  them  in  the  discussion  of  this  matter  any  more 
than  I  am  holding  a  brief  for  any  resentment  that  any  man  may 
cherish  against  any  judge  of  the  court.     But  as  a  member  of  the 
bar  of  the  State,  I  feel  a  just  pride  in  the  fair  fame  of  its  judges.    I 
do  not  believe  that  men  who  have  grown  gray  in  the  service  of 
the  State,  who  have  been  placed  upon  the  bench  time  and  again 
by  the  suffrages  of  their  fellow-citizens,  should  be  disgraced  or 
dishonored  by  reckless  words  uttered  in  hasty  debate.     The  fame 
of  a  judge  is  a  great  and  sound  fame.     It  does  not  spring  into 
existence  in  a  single  night  like  Jonah's  gourd,  but  it  is  the  result 
of  long  years  of  study,  of  seclusion  from  the  ordinary  enjoyments 
of  social  life  and  from  the  ordinary  ambitions  and  the  more  attract- 
ive ambitions  which  have  force  in  the  minds  of  other  men  in  other 
vocations.     And  I,  for  one,  shall  be  proud,  as  I  am  now,  at  any 
72 


1138  REVISED  RECORD.  [Wednesday, 

time  and  in  any  presence,  to  defend  the  fame  of  the  judiciary  of  the 
State  of  New  York. 

The  nature  of  that  question,  as  I  have  said,  is  not  strictly  a  legal 
question,  although  I  believe,  as  suggested  and  stated  by  the  gentle- 
man from  Oneida  (Mr.  Cookinham),  that  it  can  be  maintained 
upon  those  grounds.  He  has  handed  me,  to  bring  to  the  attention 
of  the  Convention,  in  response  to  the  inquiry  made  by  the  dele- 
gate who  spoke  last  upon  the  question  (Mr.  Barhite),  the  report 
of  the  decision  in  the  case  of  the  State  of  Louisiana  against  the 
police  jury  of  Jefferson,  as  reported  in  n6th  United  States  Court 
Reports.  The  head-note  of  that  decision,  which  is  fairly  borne  out 
by  the  decision,  is  as  follows:  "After  services  have  been  rendered 
under  a  municipal  law,  resolutions  or  ordinances  which  fixes  the 
rate  of  compensation,  there  arises  an  implied  contract  to  pay  for 
those  services  at  that  rate,  and  the  obligation  of  such  contract 
cannot  be  impaired  by  the  State.  A  provision  in  a  State  Constitu- 
tion may  be  a  law  impairing  the  obligation  of  a  contract  as  well 
as  one  found  in  an  ordinary  statute."  Now,  that  is  the  deliverance 
of  the  ultimate  court  of  the  nation  upon  the  particular  question 
which  is  involved  in  the  matter  before  the  Convention.  With  such 
a  light  to  guide  us,  with  such  a  solemn  deliverance,  I  do  not  think 
the  delegates  ought  hastily  to  rush  to  a  counter  conclusion,  espe- 
cially when  that  counter  conclusion,  as  I  stated  in  the  outset  of 
what  I  have  said,  nearly  involves  the  honor  and  the  reputation  for 
integrity  of  this  State.  I  think  I  have  stated  now  to  a  sufficient 
extent  the  answer  to  the  inquiry  of  the  gentleman  from  Essex 
(Mr.  McLaughlin)  as  to  the  motives  and  purposes  of  the  Judiciary 
Committee  in  reaching  the  conclusion  that  it  did  reach,  and  I  sin- 
cerely trust  that  this  amendment  will  not  prevail. 

Mr.  Hawley  —  Mr.  Chairman,  I  do  not  think  that  the  Judiciary 
Committee  needs  any  defense  in  this  Convention  for  the  amend- 
ment which  is  now  under  discussion.  I  had  proposed  to  speak 
briefly  upon  the  amendment  from  the  view  point  that  whether  or 
not  there  was  here  a  liability  upon  the  part  of  the  State,  there 
was  most  certainly  a  question  which  affected  the  good  faith  and 
the  honor  of  the  State  in  such  a  way  that  the  State  could  not  afford 
to  disregard  that  moral  obligation;  but  I  can  add  nothing  to  that 
argument.  I  turn  then  to  express,  in  a  very  few  brief  sentences, 
what  seems  to  me  to  be  the  necessary  construction  of  the  present 
Constitution. 

The  present  Constitution  says  that  the  official  terms  of  the  jus- 
tices and  judges  shall  be  fourteen  years.  It  does  not  again  in  that 
section  repeat  the  phrase  "official  terms,"  but  in  the  succeeding 


August  22.]  CONSTITUTIONAL  CONVENTION.  1139 

section  it  provides  that  the  compensation  of  the  judges  shall  not  be 
diminished  during  their  official  terms.  Now  I  take  it  that  "  official 
terms,"  in  the  one  section,  means  exactly  what  the  same  words 
mean  in  the  other  section.  The  official  term  then  is  fourteen  years, 
and  the  compensation  for  that  official  term  cannot  be  diminished 
during  the  term  itself. 

In  the  other  places  in  this  section,  where  the  word  "term"  is 
used,  it  is  used  without  the  qualifying  adjective  "official,"  and  to 
my  mind  that  has  some  significance.  The  provision  is  that  the 
compensation;  that  is  to  say,  the  same  thing  which  in  the  succeed- 
ing section  it  is  provided  shall  not  be  diminished  during  the  official 
term,  the  compensation  of  one  whose  term  of  office  shall  be 
abridged  under  the  circumstances  provided,  shall  be  continued  for 
the  remainder  of  the  term. 

It  seems  to  me,  Mr.  Chairman,  that  from  that  use  of  the  language 
there  arises  here  a  contract  liability  so  plain  that  it  is  in  and  of 
itself  a  complete  justification  for  this  report  from  the  Judiciary 
Committee,  and  that  the  amendment  as  proposed  by  them  ought 
to  be  adopted  unchanged. 

Mr.  A.  B.  Steele  —  Mr.  Chairman,  from  the  remarks  that  I  made 
when  the  question  of  Mr.  Roche's  amendment  was  being  discussed, 
and  when  the  different  amounts  that  would  be  paid  to  the  judges 
in  future  were  being  considered,  I  understand  a  great  many  dele- 
gates inferred  from  that  that  it  was  my  judgment  that  the  amounts 
to  be  paid  to  the  judges  now  serving  should  be  cut  off  at  once. 
And  among  other  things,  it  was  suggested  to  me  that  I  said  that 
when  the  vote  was  taken  upon  this  proposed  amendment  in  1880, 
the  people  who  voted  upon  the  proposition  voted,  believing  that 
in  no  event  could  a  judge  receive  pay  for  more  than  four  years 
after  the  expiration  of  his  term. 

Mr.  Chairman,  I  reiterate  what  I  said  upon  this  subject,  and  at 
the  same  time  I  am  opposed  to  the  proposition  to  strike  out  this 
amendment,  and  I  shall  state  briefly  why. 

I  believe  it  is  the  duty  of  this  Convention,  Mr.  Chairman,  to 
endeavor  to  carry  out  the  wishes  of  the  people.  If  it  were  the 
wish  of  the  people  to-day  that  we  should  pass  this  proposed  amend- 
ment and  strike  out  the  part  proposed  by  the  gentleman  from 
Essex  (Mr.  McLaughlin),  I  believe  we  should  do  so;  but  I  do  not 
believe,  Mr.  Chairman,  that  such  is  the  desire  of  the  people.  And 
for  that  reason,  as  one  of  the  reasons,  I  desire  to  call  attention 
to  the  vote  that  has  been  taken.  The  proposition  to  give  the  judges 
this  extra  compensation  we  all  remember  took  place  in  1880,  when 
there  was  no  other  amendment;  that  is,  except  the  judiciary  article, 


II40  REVISED  RECORD.  [Wednesday, 

before  the  people.  They  therefore  had  full  opportunity  to  read  it, 
to  examine  it  and  to  consider  it,  and  when  they  went  to  the  polls, 
if  they  considered  that  was  objectionable,  they  could  have  cast 
their  votes  against  it  without  interfering  with  any  other  proposition 
that  might  have  been  in  the  amendment.  Therefore,  Mr.  Chair- 
man, the  people  deliberately  voted  at  that  time  to  give  the  justices 
of  the  Supreme  Court  and  of  the  Court  of  Appeals,  who  had  served 
for  ten  years,  compensation  for  the  balance  of  their  terms. 

But  we  go  a  little  further.  We  say  that  it  is  supposed,  or  that 
the  people  supposed  at  that  time,  that  the  term  could  not  exceed 
four  years;  that  is  that  this  salary  without  service  could  not  go 
beyond  four  years.  Judge  Cady  has  just  shown  that  the  first 
decision  was  made  in  September,  1890,  by  a  Special  Term  judge, 
before  even  the  nomination  of  Judge  Earl,  as  I  understand  it,  a 
year  before  the  nomination  of  Judge  Andrews,  and  before  the  nomi- 
nations of  two  other  of  the  judges  who  are  interested  in  this  prop- 
osition. The  General  Term,  very  shortly  after  the  election  of 
Judge  Earl,  upon  the  opinion,  as  Judge  Cady  has  just  stated, 
of  the  Special  Term,  affirmed  the  judgment;  and  then  the  Court 
of  Appeals,  by  three  persons  who  were  not  and  could  not  have 
been  interested  in  any  manner  in  this  result,  would  have,  without 
Judge  Earl,  affirmed  the  judgment. 

But  let  us  go  a  little  further.  This  affirmance  was  made  in  Feb- 
ruary, 1891,  which  settled  the  law  for  all  time  to  come.  In  Novem- 
ber of  that  year,  Judge  Andrews  was  elected.  Prior  to  the  election 
he  was  nominated  by  the  Republican  party,  and  was  indorsed  by 
the  Democratic  party,  in  the  face  and  eyes  of  the  decision  of  the 
Court  of  Appeals,  that  in  case  he  was  elected  he  should  receive 
compensation  for  nine  years  without  rendering  service  therefor. 

Then,  Mr.  Chairman,  can  we  say  that  the  people  did  not  know 
what  they  were  doing?  I  think  not.  I  think  the  people  deliber- 
ately elected  Judge  Andrews,  and  also  two  other  judges  to  the 
General  Term,  knowing  that  they  would  receive  this  extra  com- 
pensation. Therefore,  I  believe  that  it  would  be  perverting  the 
will  of  the  people  were  we  now  to  pass  this  proposed  amendment 
of  the  gentleman  from  Essex. 

But,  Mr.  Chairman,  I  desire  to  go  a  little  further.  It  is  said 
that  there  is  an  enormous  sum  involved  here;  and  that  is  true  in 
one  sense.  There  is  yet  to  be  paid  to  the  justices  of  the  Supreme 
Court  and  of  the  Court  of  Appeals,  assuming  that  they  live  during 
the  fourteen  years  for  which  they  were  elected,  the  sum  of  $624,400. 
But,  Mr.  Chairman  and  gentlemen,  the  people  elected  the  judges, 
after  the  decision  of  the  court,  who  will  receive  $336,400  of  that 


August  22.]  CONSTITUTIONAL  CONVENTION.  1141 

money,  knowing  when  they  elected  them  that  they  would  receive 
this  extra  compensation. 

Mr.  Chairman,  for  these  reasons,  I  think  we  should  vote  down 
the  amendment  proposed  by  the  gentleman  from  Essex,  and  indorse 
the  article  which  is  presented  by  the  Judiciary  Committee. 

Mr.  Goodelle  —  Mr.  Chairman,  a  single  suggestion.  I  am  in 
favor  of  guarding  and  protecting  the  treasury  of  the  State  to  the 
fullest  extent  that  the  necessities  of  the  case  and  the  honor  of  the 
State  demand.  But  I  desire  to  call  the  attention  of  the  gentleman 
from  Essex  to  the  fact  that  the  proposition  here  under  consider- 
ation does  not  impose  any  new  burden  upon  the  people,  but,  on 
the  other  hand,  the  amendment,  as  suggested  by  the  committee, 
not  only  tends  to  restrict,  but  tends  to  relieve,  the  people  of  bur- 
dens which  already  exist.  To  that  extent,  therefore,  we  are  not 
imposing  burdens  upon  the  people,  but  we  are  relieving  them 
from  burdens  which  already  exist. 

But  Mr.  Chairman,  there  is  in  my  judgment  a  question  far  above 
and  beyond  that,  the  question  that  has  been  suggested  as  the  honor 
of  the  State.  I  do  not  believe  that  we  can  afford,  I  do  not  believe 
that  this  State  can  afford,  to  violate  at  least  the  implied  contract 
made  between  its  servants  and  the  State,  in  reference  to  this  com- 
pensation; nor  do  I  believe  that  the  people  of  this  State  expect  or 
demand,  nor  do  I  believe  that  they  would  be  willing  that  we  should 
cast  dishonor  upon  the  State  by  passing  this  amendment  proposed 
by  the  gentleman  from  Essex. 

I  am  for  these  reasons,  Mr.  Chairman,  opposed  to  the  amend- 
ment. 

Mr.  Dean  —  Mr.  Chairman,  I  am  not  a  lawyer.  I  am  in  this 
Convention  representing  a  constituency  which  elected  me  with  the 
absolute  knowledge  that  I  would  do  just  exactly  as  I  saw  fit  to 
do  under  any  circumstances;  therefore  I  have  no  apologies  to  make 
to  my  constituency.  The  people  of  the  State  of  New  York,  in  the 
•year  1880,  by  a  vote  of  201,000  against  a  vote  of  111,000,  voted 
to  give  this  compensation  to  the  judges  of  the  Court  of  Appeals 
and  the  justices  of  the  Supreme  Court  after  their  terms  of  office 
should  expire.  I  think  that  this  was  wrong  and  vicious.  It  is,  how- 
ever, a  question  which  has  been  brought  upon  us  by  the  present 
generation.  They  are  responsible  for  whatever  expenditure  is 
made  under  that  provision;  and  I,  believing  that  the  greatest 
lessons  are  learned  from  actual  experience,  believe  that  they  should 
in  good  faith  carry  out  that  contract  with  the  judges  of  the  sev- 
eral courts  of  this  State.  I  am,  therefore,  in  favor  of  supporting 


H42  REVISED  RECORD.  [Wednesday, 

the  recommendation  of  the  committee,  leaving  to  posterity  the 
opportunity  to  get  rid  of  this  pension. 

Mr.  Dickey  —  Mr.  Chairman,  this  subject  was  pretty  fully  dis- 
cussed on  the  proposition  of  Mr.  Roche,  when  that  was  heard  in 
committee  some  days  ago.  At  that  time  I  took  occasion  to  show 
how  that  part  of  his  proposition,  similar  to  the  proposition  of  the 
gentleman  here,  would  leave  this  matter,  and  would  affect  the 
three  venerable  judges  of  the  Second  Judicial  District,  one  of  whom, 
after  thirty  years  of  faithful  service,  has  already  retired,  and  the 
other  two  soon  are  to  retire;  and  when  the  gentleman  who  pro- 
posed that  amendment  consented  to  the  amending  of  his  propo- 
sition so  that  it  did  not  affect  any  of  the  judges  now  in  office,  I 
supposed  that  was  an  end  of  the  matter.  But  the  gentleman  from 
Essex  is  such  a  plucky  fighter  that  he  does  not  know  when  he  is 
beaten,  and  he  renews  it.  Therefore  we  must  vote  down  his  amend- 
ment to-night,  because  if  he  is  successful  in  carrying  it,  does  he 
not  know  that  to-morrow  it  would  be  reconsidered  and  he  would 
be  beaten  then?  And  it  is  far  more  merciful  for  him  to  die  to-night 
rather  than  to  dream  that  he  has  been  successful  over  night,  and 
die  on  the  morrow.  (Laughter.)  I  had  that  experience  last  night 
myself,  and  I  have  a  fellow  feeling  for  him,  and  want  his  death  to 
be  an  easy  and  a  merciful  and  a  speedy  one.  And  when  the  gentle- 
man from  Monroe  (Mr.  Barhite),  who  is  in  favor  of  all  measures 
of  economy  and  retrenchment,  and  who  is  a  good  member  of  this 
Convention  and  ordinarily  stands  for  the  people,  including  the 
women  people,  when  he  admits,  as  he  does  from  his  place  upon 
this  floor,  that  the  present  judges  may  have  a  moral  right  to  this 
compensation,  he  admits  everything  that  is  provided  for  by  this 
amendment  as  proposed  by  the  Judiciary  Committee,  and  he  cer- 
tainly does  not  want  us  as  a  Convention  to  be  immoral.  If,  as  he 
says,  these  gentlemen  have  the  moral  right  to  this  compensation 
if  they  took  office  with  the  understanding  that  their  compensation 
was  to  last  until  the  end  of  their  terms  for  which  they  were  electedv 
and  we  have  shortened  their  terms  "by  a  new  amendment,  they 
certainly  ought  to  have  the  pay  for  that  full  time,  and  it  should 
be  in  no  sense  abridged.  But  some  gentlemen  think  that  they 
ought  to  work  after  they  are  seventy,  and  should  not  be  paid 
unless  they  do  work.  As  I  had  occasion  to  say  of  those  of  the 
judges  that  I  know,  one  from  our  district  who  has  already  been 
retired,  is  quite  willing  and  anxious  to  work,  and  .therefore,  when 
it  is  in  order  to  do  so,  I  propose  to  offer  an  amendment  at  the  close 
of  this  section  in  the  following  words:  "The  Governor  shall  have 
power  to  assign  to  duty  any  judge  or  justice  who  has  been  or  may 


August  22.]  CONSTITUTIONAL  CONVENTION.  1143 

be  retired  from  duty  because  of  the  age  limit,  if,  in  his  opinion, 
the  public  interests  will  be  served  thereby."    If  that  amendment  is 
adopted  by  this  committee  —  and  it  probably  will  not  be,  because 
it  is  not  in  the  present  judiciary  article  —  but  if  it  is  adopted  it 
gives  the  Governor  a  chance  to  put  to  work  such  of  these  judges 
as  are  willing  and  able  to  work;  and  many  of  them  are  better  able 
to  do  their  work  at  seventy  than  they  were  at  sixty.     The  vigor 
and  intellect  of  men  beyond  the  age  of  seventy  are  well  evidenced 
by  the  large  number  of  intelligent  members  of  this   Convention 
who  have  reached  and  exceeded  that  age.    They  are  prompt  in  their 
attendance,  they  are  vigorous  in  their  utterances  and  they  are  gener- 
ally  correct  in  their  votes,  much  more  so  than  some  of  the  boys  of 
the  Convention. 

Therefore,  if  those  of  you  who  may  be  troubled  by  reason  of  this 
continuance  of  the  pay  after  these  judges  may  be  retired  from 
having  reached  the  age  limit  of  seventy,  will  vote  for  the  propo- 
sition I  am  about  to  suggest,  they  can  be  put  to  work,  and  they 
can  work  the  balance  of  the  time  they  live.  The  voting  down  of 
this  amendment  will  only  be  the  honorable  and  fair  thing,  and  I 
hope  it  will  be  done. 

Mr.  E.  R.  Brown  —  Mr.  Chairman,  I  desire  to  offer  an  amend- 
ment to  Mr.  McLaughlin's  amendment  if  in  order. 

The  Chairman  —  The  gentleman  will  send  the  amendment  to  the 
desk. 

The  Secretary  read  Mr.  E.  R.  Brown's  amendment  as  follows: 
Strike   out   line    16,   page   9,   and   the   following  lines   to   and 
including  line  25  on  the  same  page,  and  substitute:     "The  §om- 
pensation  of  every  judge  of  the  Court  of  Appeals,  and  of  every 
justice  of  the  Supreme  Court  heretofore  elected,  whose  term  of 
office  shall  have  been  or  shall  be  abridged  pursuant  to  this  pro- 
vision, and  who  shall  have  served  as  such  judge  or  justice  ten  years 
of  the  term  which  he  is  then  serving,  shall  be  continued  during 
the  remainder  of  the  term  for  which  he  was  elected.     No  judge 
or  justice  taking  office  after  January  I,  1894,  shall  be  entitled  to 
receive  any  such  compensation  after  the  last  day  of  December  next 
after  he  shall  be  seventy  years  of  age." 

Mr.  E.  R.  Brown  —  Mr.  Chairman,  this  amendment  is  in  the 
language  of  the  commission  which  sat  in  1890,  and  the  record 
discloses  that  it  was  certainly  at  one  time  adopted  by  that  com- 
mission. We  should  bear  in  mind,  in  discussing  this  question, 
that  when  this  provision  was  first  put  into  the  Constitution,  it  was 
to  meet  the  cases  of  those  judges  equally  distinguished  with  the 


II44  REVISED  RECORD.  [Wednesday, 

judges  of  to-day  who  had  served  with  great  distinction  upon  the 
Supreme  Court  bench  of  this  State  eight-year  terms  at  twenty-five 
hundred  dollars  a  year.  The  salaries  of  judges  had  been  raised  and 
the  bench  was  filled  with  distinguished  men  who  had  rendered 
great  service  to  the  State,  but  who  could  not  in  the  few  years  left 
for  service  acquire  a  competence,  and  in  so  far  as  it  was  intended 
to  provide  for  those  cases,  I  believe  that  it  was  a  desirable  pro- 
vision. I  am  not  one  of  those  who  believe  that  it  is  monarchical, 
that  it  is  contrary  to  the  spirit  of  our  institutions,  or  that  there  is 
any  lurking  danger  in  it  whatever,  for  the  State  of  New  York,  in  a 
proper  case,  to  provide  by  pension  for  its  public  civil  servants. 
But  we  come  here  now  with  a  reasonable  degree  of  unanimity  upon 
this  point,  that  this  measure  should  be  repealed,  and  I  believe  that 
the  sentiment  is  so  unanimous  because  of  the  outrageous  effect 
of  the  provision  itself,  made  twice  more  outrageous  by  the  decision 
of  the  judges  whom  it  is  to  benefit. 

In  the  first  place,  if  it  is  intended  to  act  as  a  compensation,  it 
does  not  so  act.  There  are  two  judges  in  my  district  who  will  have 
served  twenty-eight  years  upon  the  bench  and  whose  term  will 
expire  just  before  they  are  seventy  years  of  age,  who  will  not  draw 
a  single  farthing.  There  is  another  judge  in  my  district  who  is 
just  now  drawing  his  last  year's  pension,  who  served  ten  years  upon 
the  bench.  If  it  is  to  be  treated  as  a  pension,  it  does  not  so  operate. 
The  man  who  has  served  twenty-eight  years  upon  the  bench  is 
entitled  to  the  pension  much  more  than  the  man  who  serves  ten. 
This  provision  in  and  of  itself  is  obnoxious  to  the  people  of  the 
State.  It  violates  that  rule  in  relation  to  pensions  heretofore 
observed,  which  requires  that  men  who  are  retired  shall  receive 
less  than  the  full  pay.  In  this  case,  by  the  construction  which 
has  been  given  to  this  provision,  the  judges  not  only  receive  their 
salary,  but  they  receive  in  addition  to  their  salary  their  expense 
allowance,  by  virtue  of  the  decision  of  judges  who  are  to  derive 
benefit  from  it. 

Not  only  that,  but  we  are  looking  in  considering  this  report  of 
the  Judiciary  Committee  to  the  protection  only  of  the  judges  who 
may  draw  this  pension.  We  are  not  looking  to  the  protection  of 
that  large  number  of  worthy  men,  now  sitting  on  the  bench  in  this 
State,  who  cannot  be  re-elected  in  their  own  districts,  because  if 
re-elected,  the  people  appreciate  that  they  will  draw  compensation 
beyond  what  they  earn.  Are  these  men  not  worthy  of  considera- 
tion? Shall  we  look  only  to  those  who  have  drawn  the  full  salary 
for  the  last  fourteen  years,  and  are  about  to  retire  from  the  bench 


August  22.]  CONSTITUTIONAL  CONVENTION.  1145 

and  drive  into  retirement  the  worthy  men  now  sitting  upon  the 
bench  in  this  State  who  may  serve  from  five  to  ten  years? 

In  the  consideration  of  this  question,  it  seems  to  me  that  there 
cannot  be  a  single  gentleman  in  this  Convention  who  does  not 
regret  that  the  Court  of  Appeals  held  that  the  twelve  hundred 
dollars  expense  allowance  was  a  part  of  the  pension.  No  matter 
what  the  letter  of  the  law,  it  is  the  spirit  of  the  law  that  should 
affect  the  courts,  especially  when  they  are  deciding  upon  matters 
which  touch  their  own  interests,  and  it  is,  above  all,  the  spirit  of 
the  law  which  should  control  the  deliberations  of  a  Constitutional 
Convention.  Notwithstanding  that  decision,  I  must  say  that  one 
of  the  judges  issued  a  strong  and  ringing  dissent,  and  when  a 
question  was  of  such  doubt,  touching  the  pockets  of  the  judges  of 
the  Court  of  Appeals,  that  one  of  their  number  would  issue  a  ring- 
ing dissent  from  the  judgment  of  that  court  I  will  not  take  the 
time  of  this  Convention,  and  I  claim  that  it  would  not  be  to  the 
point  for  any  gentleman  to  stand  upon  this  floor  and  take  the  time 
of  this  Convention,  arguing  the  question  of  law.  In  matters  of 
such  doubt  the  delicacy  to  the  court  iself  should  come  to  the  rescue 
of  the  State,  between  whom  and  the  judges  there  is  no  barrier. 
After  that  was  done  they  took  another  case  to  the  Court  of  Appeals, 
not  satisfied  with  drawing  the  expense  allowance,  and  the  Court  of 
Appeals,  by  a  vote  of  four  to  three,  rendered  a  judgment  in  favor 
of  the  members  of  that  court  further  extending  its  application.  It 
is  an  indelicacy,  it  is  an  impropriety  which  I,  at  least,  do  not  fear, 
to  criticise  in  my  place  in  this  Convention.  I  respect  the  Court 
of  Appeals;  I  admire  the  Court  of  Appeals;  but  gentlemen  entirely 
mistake  the  temper  of  this  Commonwealth  if  they  believe  that  the 
standing  of  the  Court  of  Appeals  can  be  raised  by  a  varnish  of 
this  kind,  by  a  Convention  made  up  of  lawyers.  In  the  constitu- 
tional commission,  evidently,  the  view  was  taken  which  was 
embodied  in  the  amendment  I  have  offered  —  taken  at  one  time; 
it  has  been  called  to  my  attention,  however,  by  one  of  the  gentle- 
men who  was  in  that  commission,  that  the  final  report  did  not 
embody  it,  although  it  was  adopted  by  the  commission. 

Gentlemen  of  the  Convention,  I  will  not  detain  you  in  the  dis- 
cussion of  this  question,  but  I  desire  to  say  one  word  more.  It 
has  been  suggested  here  by  gentlemen,  that  it  was  a  right  at  law. 
If  it  is  a  right  at  law,  leave  it  where  you  left  the  Salt  Springs 
claim.  Do  not  put  claims  into  the  Constitution.  Let  them  rely 
and  stand  upon  their  right  like  other  citizens  of  the  State,  but  in 
the  exercise  of  good  faith  towards  the  judges,  and  the  amendment 
which  I  have  offered  is  intended  to  exercise  that  good  faith  to  the 


1146  REVISED  RECORD.  [Wednesday, 

full  spirit,  let  us  not  forget  to  exercise  good  faith  towards  our 
constituents. 

Shall  we  perpetuate  for  a  generation  this  unreasonable  con- 
struction, this  construction  against  the  spirit  of  the  Constitution, 
a  construction  which  gives  compensation  where  it  has  not  been 
earned;  a  construction  which  denies  compensation  where  it  has 
been  earned,  a  construction  which  gives  $100,000  to  one  judge,  and 
to  another  judge  who  has  rendered  the  same  service  at  the  same 
time,  nothing?  Shall  we  perpetuate  here  for  a  generation  a  pro- 
vision which  will  drive  from  the  bench,  before  the  age  limit  is 
reached,  as  worthy  men  as  sit  upon  it,  for  the  benefit  of  those  who 
have  not  earned  this  money?  Shall  we  perpetuate  a  provision  which 
will  give  the  judges  now  upon  the  bench  twice  the  compensation 
which  will  be  given  for  the  same  service  to  judges  who  go  upon 
the  bench  within  a  year?  Mr.  Chairman,  we  are  a  Convention  of 
lawyers;  all  judges  are  lawyers,  and  when  this  judiciary  article  is 
adopted,  all  lawyers  may  hope  to  be  judges;  but,  Mr.  Chairman, 
when  the  deliberations  of  this  Convention  are  over  and  the  great 
deliberation  of  the  commonwealth  begins,  the  most  serious  and  the 
most  searching  inquiry  will  be,  not  whether  we  stood  out  against 
the  unjust  claims  of  corporations,  or  the  unjust  claims  of  labor,  or 
the  machinations  of  politicians;  it  will  be  whether  we  stood  out 
against  the  unjust  claims  of  our  own  class.  I  adjure  you,  gentle- 
men, to  be  brave  enough,  to  be  honest  enough,  to  be  discriminating 
enough,  to  do  equal  and  exact  justice,  but  not,  as  is  argued,  because 
this  is  a  trifle,  tip  it  into  the  coffers  of  our  own  class. 

Mr.  Choate  —  Mr.  Chairman,  by  whatever  other  name  we  may 
be  known  among  men,  when  the  results  of  our  labors  are  disclosed, 
and  handed  down  for  posterity  to  forget,  let  us,  above  all  things, 
avoid  being  known  as  the  repudiating  Convention  of  the  State  of 
New  York,  as  we  shall  be,  if  either  the  whole  amendment  of  the 
gentleman  offered  from  Essex  (Mr.  McLaughlin),  or  the  half- 
way amendment  offered  by  the  gentleman  from  Jefferson  (Mr. 
Brown),  should  be  adopted  here  to-night.  I  do  not  mean  to 
say  that  either  of  those  gentlemen,  or  any  of  the  other  gentlemen 
who  have  suggested  that  these  earned  payments,  earned  pensions, 
earned  compensations,  shall  be  cut  off,  have  in  their  minds  to 
sully  the  fair  name  of  this  State  or  of  this  Convention,  but  that  that 
will  be  the  inevitable  effect  of  the  measures  which  they  propose. 
I  have  not  exactly  taken  in  the  full  purport  of  Mr.  Brown's  amend- 
ment, but  as  I  understand  it,  he  says  to  these  judges  who  have 
entered  upon  office,  upon  a  constitutional  obligation,  that  their 
compensation  should  be  so  much  under  such  circumstances  and 


August  22.]  CONSTITUTIONAL  CONVENTION.  1147 

that  it  should  never  be  reduced,  he  says  to  them:  "  Yes,  we  recog- 
nize your  right,  but  we,  as  a  Constitutional  Convention,  have  power 
to  cut  it  off  entirely;  we  will  compromise  the  matter  with  you  and 
give  your  agreed  compensation,  not  for  the  term  for  which  it  was 
promised  you,  and  in  respect  to  which  you  have  entered  upon  the 
service  of  the  public,  but  we  will  give  it  to  you  in  half  measure, 
for  a  portion  of  that  time."  And  the  gentleman  says  that  is  the 
true  spirit  of  his  proposed  amendment.  "  We  do  not  know  and 
we  do  not  care  whether  you  are  entitled  to  it.  We  have  the  power 
to  cut  it  off,  and  we  will  cut  it  off  by  our  supreme  power,  speaking 
for  the  people  of  the  State  of  New  York." 

Now,  Mr.  Chairman,  one  word  on  the  history  of  this  matter. 
Shortly  before  the  adoption  of  the  amendment,  which  created  these 
pensions,  the  policy  of  pursuing  which  is  abandoned  by  everybody, 
shortly  before  that  the  example  was  set  by  the  federal  government 
which  never  had  given  a  civil  pension  before.  Recognizing  the 
arduous  labors,  the  exalted  station  and  the  increasing  age  and  the 
difficulty  of  bearing  the  responsibility  which  rested  upon  the  judges 
of  the  Supreme  Court,  they  enacted  that  if  a  man  had  been  ten 
years  in  service  on  the  bench  and  reached  the  age  of  seventy,  he 
might  retire,  and  should  have  his  pension  for  the  same  salary  for  the 
residue  of  his  life.  In  the  federal  service  it  had  never  been  known 
that  a  judge  once  retired  or  relieved  from  service  upon  the  bench 
.  returned  after  an  interval  to  resume  his  place  by  appointment  of 
the  President.  No  such  case,  I  believe,  had  ever  occurred.  And 
so,  when  the  act  of  Congress  said  that  if  you  have  served  ten  years 
upon  the  bench  and  have  reached  the  age  of  seventy,  you  may  retire 
with  this  pension,  it  meant  ten  continuous  years  of  service,  prior 
to  the  arrival  at  seventy  years  of  age.  Inspired  by  that  example, 
the  people  of  this  State  adopted  the  constitutional  amendment 
of  1880  in  the  same  spirit  and  in  language  which  admits  of  but 
one  interpretation.  Let  me  read  it.  It  seems  to  have  escaped 
the  memory  of  the  gentlemen  who  have  introduced  these  amend- 
ments. The  provision  is:  "The  compensation  of  every  judge  of  the 
Court  of  Appeals,  and  of  every  justice  of  the  Supreme  Court  whose 
term  of  office  shall  be  abridged  pursuant  to  this  provision,  and 
who  shall  have  served  as  such  judge  or  justice,  ten  years  or  more, 
shall  be  continued  during  the  remainder  of  the  term  for  which 
he  was  elected  "  —  imitating  at  a  considerable  distance,  but  in  the 
same  spirit,  the  policy  that  ha'd  been  inaugurated  at  Washington. 
Now,  it  never  had  been  known  in  this  State,  I  believe  it  never 
will  be  known,  that  a  judge  serving  a  term  of  fourteen  years,  retired 
into  private  life,  and  after  an  interval  was  re-elected  for  another 


1 148  REVISED  RECORD.  [Wednesday, 

fourteen  years.  The  perpetual,  universal  policy  in  this  State  was 
either  when  a  judge's  term  was  ended,  to  let  him  depart  into  private 
life,  or,  if  his  services  were  held  so  valuable  that  he  must  be  con- 
tinued in  the  service  of  the  State,  to  re-elect  him  immediately,  so 
that  his  one  term  should  join  right  on  upon  the  heels  of  that  which 
preceded,  and,  therefore,  in  the  only  way  in  which  this  would 
apply,  you  would  find  a  judge  who  had  served  fourteen  years  or 
more  in  the  service  of  the  State  as  an  acceptable  judge,  and  who 
had  reached  the  age  of  seventy,  and  was  thereby  to  be  retired.  Mr. 
Chairman,  is  there  any  doubt,  has  anybody  suggested  a  doubt,  as  to 
what  that  means?  Nobody.  The  gentleman  from  Essex  (Mr. 
McLaughlin)  says  the  people  did  not  realize  what  it  meant.  Who 
are  the  people  who  did  not  realize  what  it  meant?  It  is  upon  its 
face  capable  of  but  one  meaning,  "  Shall  have  served  ten  years 
or  more,"  meaning  ten  or  more  continuous  years  up  to  the  time 
of  his  reaching  seventy  and  when  this  case  came  before  the  Court 
of  Appeals,  the  only  argument  that  was  presented  that  was  deemed 
worthy  of  consideration  by  Judge  Peckham,  who  wrote  the  opinion 
of  the  court,  was  that  it  would  be  a  very  strange  thing  to  apply, 
that  if  a  man  when  he  was  twenty-five  years  old  should  serve  a  term 
in  the  Supreme  Court,  and  then  go  out  into  private  life,  and  pursue 
his  profession  until  he  was  sixty-five,  and  then  be  elected  for  five 
years,  it  would  be  a  hard  thing  for  him  to  claim  his  pension  of 
nine  years  after  arriving  at  the  age  of  seventy.  Judge  Peckham 
-says  that  is  not  a  supposable  case,  and  when  such  a  conundrum 
is  presented  to  this  court  for  solution,  we  will  endeavor  to  solve  it. 
Now,  Mr.  Chairman,  has  either  of  these  gentlemen  who  have  advo- 
cated the  breaking  down  of  the  report  of  the  committee  on  this 
point,  said  that  the  decision  of  the  Court  of  Appeals  was  not  right? 
Have  they  pointed  out  any  other  possible  construction  which  this 
would  bear?  No.  They  have  only  said  that  Judge  Earl,  who 
was  afterwards  to  benefit  by  it,  took  part  in  the  decision.  It  seems 
to  me,  Mr.  Chairman,  that  any  reasonable  lawyer  reading  that 
decision  and  reading  the  constitutional  provision  upon  which  it 
is  based,  understanding  the  history  of  the  whole  matter,  will  say 
at  once  that  the  decision  is  right.  And  now  what  follows?  They 
talk  about  $400,000  being  possibly  involved  in  this.  It  is  a  possi- 
bility. Probably  $200,000  would  be  a  more  reasonable  calculation 
upon  the  possibilities  of  life.  But  I  call  now  the  attention  of  the 
Convention  to  the  presiding  judge 'of  the  Court  of  Appeals.  The 
case  was  submitted  in  the  Court  of  Appeals  on  the  I5th  day  of 
January,  1891.  It  was  decided  on  the  24th  of  February,  1891,  and 
the  presiding  justice  of  the  Court  of  Appeals  was  elected  in 


August  22.]  CONSTITUTIONAL  CONVENTION.  1149 

November,  1892,  upon  the  face  of  that  decision  by  the  people  of 
this  State.  Now,  what  is  proposed?  Why,  sir,  are  we  returning 
to  barbarous  times,  or  do  we  live  here  in  the  end  of  the  nineteenth 
century,  when  public  life  and  public  policy  are  sought  to  be  placed 
upon  an  exalted  basis?  What  is  proposed?  That  the  distinguished 
judge,  having  served  the  State  faithfully  for  twenty-eight  years  in 
this  single  Court  of  Appeals,  having  then  done  probably  more  than 
any  other  living  man  to  make  the  law  of  this  State,  shall  be  what, 
when  his  term  expires  at  the  end  of  1896?  What  do  they  say? 
Do  they  say :  "  You  are  entitled  to  this  pension?  "  They  know  he  is. 
But  what  do  they  say?  ''That  you  are  entitled  to  it;  get  it;  sue  like 
any  other  suitor."  And  what  a  humiliating  spectacle  will  this  great 
State  of  New  York  present,  meeting  before  the  Supreme  Court 
of  the  nation  at  Washington,  this  hoary-headed  and  respected  ser- 
vant who  has  given  all  his  best  years  to  its  highest  service,  and 
compelling  the  State  to  perform  its  solemn  obligations.  Are  we 
willing  to  drive  the  people  of  this  State  to  that  humiliating  position? 
For  one,  I  am  not.  In  my  judgment,  take  it  for  what  it  is  worth, 
good  or  bad,  as  a  lawyer,  there  is  no  answer  to  the  legal  claim. 
As  a  citizen,  as  a  man,  law  or  no  law,  there  is  no  answer  to  the 
moral  claim.  (Applause.)  Now,  Mr.  Chairman,  do  not  let  us 
debase  ourselves.  Do  not  let  us  take  a  position  that  we  cannot 
afford  to  take  before  the  people,  or  afford  for  the  people  of  the  State 
of  New  York  to  take  before  the  world.  This  State  never  has  repu- 
diated its  obligations,  and  by  our  aid  it  never  shall.  (Applause.) 

Mr.  A.  H.  Green  —  Mr.  Chairman,  I  would  like  to  ask  the 
gentleman  who  has  lately  taken  his  seat,  whether,  if  this  article 
is  left  out  entirely  from  the  Constitution,  these  judges  would  not 
be  able  to  collect  their  money.  I  want  to  know  if  this  article  is 
left  out  entirely,  whether  the  judges  would  not  have,  as  you  think, 
a  moral  claim  as  well  as  a  legal  claim  for  their  money? 

Mr.  Choate  —  Yes,  and  that  is  the  shameful  part  of  it,  that  the 
gentlemen  here  should  propose  to  drive  them  to  a  suit  for  what 
confessedly  is  clearly  theirs. 

Mr.  A.  H.  Green  —  It  may  be  the  very  shameful  part  of  it.  I 
have  not  said  a  word  on  this  subject,  and  had  no  intention  of  doing 
so,  but  as  that  language  has  been  used,  I  will  just  say  a  word  in 
defense  to  state  my  own  position.  Very  much  has  been  said  here 
about  preserving  the  honor  of  the  State,  and  not  tarnishing  its 
escutcheon.  I  do  not  understand  that  anybody  here  proposes  to 
tarnish  the  escutcheon  of  the  State,  nor  to  avoid  any  fair  or  honest 
liability  that  the  State  has  undertaken,  or  assumed.  This  matter 


1 150  REVISED  RECORD.  [Wednesday, 

of  tarnishing  the  escutcheon  of  the  State,  and  appealing  to  the  great 
Empire  State,  I  have  heard  rung  through  the  halls  of  the  Legis- 
lature many  and  many  a  time,  when  disputed  claims  were  before 
committees,  and  men  wished  to  impress  upon  gentlemen  who  had 
the  power  to  pay  them,  the  duty  of  giving  them  their  money. 
Now,  nobody  is  going  to  tarnish  the  honor  of  the  State  here,  as  I 
see.  Every  man  wants  to  act,  I  have  no  doubt,  perfectly  fairly  and 
perfectly  honorably  here.  Our  friend,  Judge  Cady,  asks  what  a 
judge  should  do.  What  shall  he  do  who  has  this  excruciating  duty 
of  passing  upon  a  claim  in  which  he  is  personally  interested?  What 
would  any  honorable  man  do?  Any  honorable  man  would  say: 
"  I  decline  to  act  in  it."  That  is  what  a  man  ought  to  say.  What  a 
gentleman  would  say  if  a  claim  was  left  to  his  arbitrament,  in 
which  he  was  personally  interested,  is,  "  I  decline  to  act  on  a  question 
of  that  kind."  Here  is  a  case,  I  understand,  where  the  judges  were 
directly  interested.  We  hear  a  great  deal  said  about  the  protection 
of  the  judges  here.  Most  singular  emphasis  is  placed  by  our 
President  and  by  others  upon  protecting  the  judges.  I  do  not 
think  these  innocents  require  much  protection.  Wherever  I  have 
tracked  them,  I  have  found  they  take  care  of  themselves  pretty 
thoroughly,  and  here  is  a  case  before  us  where  they  did  that. 
We  have  lawyers  here  on  all  sides,  citing  one  opinion  and  another; 
one  says  this  is  the  law,  and  the  other  says  it  is  not  the  law.  Now 
we  are  independent  of  the  lawyers  and  the  judges  here,  I  suppose, 
and  I  propose,  for  one,  to  act  on  my  own  convictions  of  what  this 
Constitution  says.  I  do  not  care  a  straw  what  judges  have  said 
about  it,  in  a  matter  where  they  were  personally  interested.  It 
makes  no  difference  to  me.  They  are  no  authority  to  me  here. 
When  we  adjourn  and  leave  the  Constitution,  of  course  they 
can  interpret  it  in  their  own  favor  or  against  them,  if  they  please. 
I  think  we  should  apply  a  little  common  sense  to  our  action  in 
this  matter,  and  let  the  intricacies  and  the  entanglements  of  the 
law  which  have  been  so  strongly  urged  here  for  the  protection  of 
the  judges,  let  that  go,  and  act  a  little  upon  our  own  judgment. 
Here  are  three  judges  of  the  Court  of  Appeals  who  did  not  think 
this  was  a  proper  decision.  They  had  the  manliness  to  stand  up 
against  their  associates  and  say  it  was  not  the  law,  and  they  ought 
not  to  have  this  money.  How  do  you  make  out  with  that?  How 
is  it  with  the  disgrace  to  which  we  are  going  to  subject  these 
judges  who  would  be  compelled  to  seek  their  pay  as  best  they  can? 
What  do  their  own  associates  say?  Now,  another  point  occurs 
to  me,  applying  common  sense  to  this  matter.  I  think  there  are  two 
sides  to  it,  and  that  is  in  reference  to  the  abbreviation  of  the  term, 


August  22.]  CONSTITUTIONAL  CONVENTION.  1151 

after  a  judge  has  served  ten  years  on  that  term.  Gentlemen  talk 
about  throwing  away  a  half  million  of  money,  as  though  it  were 
a  mere  trifle.  I  say  it  is  monstrous,  upon  a  doubtful  question  here, 
upon  which  our  President  thinks  these  gentlemen  may  have  a 
claim  against  the  State  if  we  strike  out  this  amendment.  Let  them 
get  it  if  they  can  get  it.  Why  should  we  interfere  with  them.  Let 
them  fight  it  out  and  get  it  themselves,  as  with  any  other  con- 
tractor, any  other  man  who  makes  a  bargain.  Let  them  fight  it 
out  and  get  it,  if  they  can.  I  do  not  think  there  is  any  particular 
disgrace  in  that;  and  I  have  no  doubt  our  friend,  the  President, 
would  be  retained  by  one  of  them  to  get  it  for  him,  and  I  have  no 
doubt  he  would  do  it  with  great  ability.  (Applause  and  laughter.) 

Mr.  Choate  —  I  certainly  would  do  it  if  they  should  employ  me. 

Mr.  A.  H.  Green  —  In  view  of  the  lightness  and  triviality  with 
which  we  are  talking  about  throwing  away  a  half  a  million,  it 
seems  to  me  the  State  needs  some  protection  here  and  the 
taxpayers  need  some  protection  as  well  as  the  judges. 
Who  pays  these  hundreds  of  thousands  of  dollars  to  men 
who  do  nothing  for  it?  Who  is  to  pay  the  taxes?  There  are  dis- 
tricts here  where  if  a  man  should  go  back  to  his  district  with  the 
tax  levy  increased  ten  dollars,  he  would  be  censured  and  compelled 
to  give  his  reason  for  it;  and  yet  we  are  disposed  to  throw  away 
a  half  million  dollars  for  fear  that  the  escutcheon  of  the  State  should 
become  smirched.  Who  is  going  to  smirch  any  escutcheon?  Let 
every  honorable  obligation  be  carried  out,  but  let  us  protect  the 
State  and  protect  the  taxpayers  in  a  doubtful  case  of  this  kind.  The 
judges  will  protect  themselves.  They  have  shown  tendencies 
already  to  do  that,  and  they  will  do  it.  I  am  in  favor  of  protecting 
the  taxpayers  as  well  as  protecting  the  judges.  They  have  capacities 
in  that  line  which  they  have  exercised  with  wonderful  ability  and 
fertility.  I  think  the  proposition  of  the  gentleman  from  Essex  (Mr. 
McLaughlin)  is  a  correct  proposition,  and  this  money  should  not 
be  paid. 

Mr.  Alvord  —  Mr.  Chairman,  I  am  a  simple  layman,  but  I  have 
a  proposition  to  put  before  this  Convention  which  I  hope  will  sink 
deep  in  the  minds  of  all;  that  they  may  think,  so  far  as  they  are 
concerned,  of  the  glory  of  the  State,  rather  than  the  picayune  desire 
to  save  a  little  money.  I  glory,  sir,  in  the  honor  of  the  State  of 
New  York,  and  I  call  the  attention  of  the  gentlemen  to  what 
occurred  but  a  few  short  years  back  in  our  history.  We  entered 
into  a  bloody  civil  war.  There  was  a  doubt  fastened  upon  the  minds 
of  many,  even  at  the  North,  whether  we  could  ever  come  forth, 


1 152  REVISED  RECORD.  [Wednesday, 

except  with  a  divided  and  disrupted  government  and  nation.    What 
did  the  State  of  New  York  do  then,  sir?    Sir,  she  did  this  noble  and 
glorious  thing.    She  said,  our  greenbacks  are  made  a  lawful  tender 
for  the  debts  of  any  person  in  this  State,  or  in  the  community,  but 
she  said  to  her  creditors :  "  You  shall  have  a  hundred  cents  on  the 
dollar  in  the  real  gold  when  each  one  hundred  dollars  of  that  gold 
in  the  market  was  worth  two  hundred  and  thirty  dollars  of  green- 
backs."    That  was  a  proud  time  in  the  history  of  this  State.     It 
was  done  without  blinking  on  the  part  of  the  people.    They  came 
up  to  the  solution  of  the  question  without  a  moment's  hesitation. 
That  money  was  loaned  in  times  when  a  dollar  in  paper  was  worth 
a  dollar  in  gold,  and  when  the  exigency  came  that  gold  was  worth 
two  hundred  and  twenty  to  two  hundred  and  thirty  against  a  hun- 
dred, the  State  stood  by  her  engagements  and  paid  her  creditors 
a  hundred  cents  on  the  dollar  in  gold.    The  only  exception  to  that, 
Mr.  Chairman,  was  that  the  State  paid  the  annual  tribute  to  the 
tribes  of  Indians  of  this  State  in  our  paper  money.     But  when 
the  war  was  over,  when  peace  reigned  throughout  our  borders, 
the  Indians  came  humbly  before  the  Legislature  of  this  State  and 
asked  to  be  reimbursed  for  the  difference,  and  in  the  House  in 
which  I  was  at  that  time,  I  am  glad  to  be  able  to  say,  that  not  a 
single  voice  in  that  entire  Assembly  was  raised  against  their  appli- 
cation, and  they  were  made  good    by  being    paid    the  difference 
between  the  money  which  they  had  received  during  the  war  and 
its  value  in  gold,  a  hundred  cents  on  the  dollar  for  a  hundred  cents 
in  paper. 

Mr.  Barhite  —  Mr.  Chairman,  I  would  like  to  ask  a  single  ques- 
tion of  the  President  of  this  Convention.  He  says  that  in  his  mind 
there  is  no  doubt  as  to  the  legal  status  of  this  case;  that  he  believes 
there  can  be  no  question  that  some  of  these  gentlemen,  as  matter 
of  law,  are  entitled  to  this  compensation.  If  that  is  so,  is  there  any 
danger  of  their  being  compelled  to  sue  the  State  of  New  York? 
Does  not  this  State  pay  its  obligations  without  lawsuits  when  there 
is  no  question  that  they  are  obligations? 

Mr.  Choate  —  That  remains  to  be  seen,  Mr.  Chairman. 
The  Chairman  put  the  question  on  the  adoption  of  Mr.  Brown's 
amendment  and  it  was  determined  in  the  negative  by  a  rising  vote. 
The  Chairman  put  the  question  on  the  adoption  of  Mr.  McLaugh- 
lin's  amendment,  and  it  was  decided  in  the  negative. 

Mr.  Vedder  —  Mr.  Chairman,  I  offer  the  following  amendment: 

The  Secretary  read  the  amendment  as  follows: 

To  amend  section  twelve  by  inserting  the  word  "five"  between 


August  22.]  CONSTITUTIONAL  CONVENTION.  1153 

the  word  "seventy"  and  the  word  "years"  on  line  15,  page  9; 
and  by  inserting  the  word  "  five  "  between  the  words  "  seventy  "  and 
"years"  on  line  18,  page  9. 

Mr.  Veeder  —  Air.  Chairman,  I  will  not  occupy  the  attention 
of  the  committee  but  a  moment.  The  purpose,  as  every  one  will 
see,  is  to  extend  the  term  of  eligibility  of  the  office  of  judge  of 
the  Court  of  Appeals  and  of  the  Supreme  Court  until  they  have 
reached  the  age  of  seventy-five  years.  I  believe  this  will  be  a  solu- 
tion of  the  whole  difficulty,  as  well  as  of  this  question  of  pensions. 
There  is  no  question  in  my  mind  but  that  the  age  of  seventy  years 
is  too  early  a  period  to  lose  the  services  of  a  lawyer  who  has  been 
educated  upon  the  bench  and  become  a  competent  judge.  Several 
instances  have  occurred  in  our  State  where,  because  of  that  period 
of  limitation,  we  have  lost  the  services  of  those  judges;  and  the 
committee  will  remember  that  in  the  Supreme  Court  of  the  United 
States  there  is  no  limit  whatever  in  respect  to  age.  I  submit,  Mr. 
Chairman,  having  in  mind  the  valuable  legal  minds,  which  we  have 
been  obliged  to  retire  without  mentioning  names,  they  are  well 
known  to  all  of  you,  that  the  solution  of  the  whole  question  would 
be  to  extend  the  period  of  service  to  seventy-five  years. 

Mr.  Smith  —  Mr.  Chairman,  I  would  like  to  ask  the  honorable 
chairman  of  the  Judiciary  Committee  on  what  principle  the  age  of 
seventy  was  fixed  as  the  limitation  of  a  judicial  office. 

Mr.  Root  —  Mr.  Chairman,  according  to  Holy  Writ,  it  is  the 
natural  right  of  man  to  consider  that  he  has  lived  his  allotted  length 
of  days  when  he  reaches  the  age  of  seventy.  That  great  principle 
has  been  recognized  in  the  judicial  system  of  the  United  States. 
We  found  it  in  the  Constitution  of  this  State,  and  we  have  left  it 
as  it  was. 

Mr.  Smith  —  Mr.  Chairman,  I  am  at  a  loss  to  know  on  what 
principle  the  life  ot  a  man  was  ever  supposed  to  be  limited  to 
seventy  years.  The  most  august  law-giver  of  all  antiquity,  the 
most  venerable  and  the  most  renowned  sage  of  the  world,  began 
the  career  which  so  distinguished  himself  and  his  nation  when  he 
was  eighty  years  of  age.  The  great  sage,  liberator,  leader  and  law- 
giver, Moses,  commenced  that  marvelous  career  that  led  his  people 
out  of  bondage  at  the  age  of  eighty  years  and  he  lived  for  forty 
years  more,  as  an  example  to  the  world.  What  authority  could 
there  ever  have  been  for  this  seventy  years  limitation:  it  never  could 
have  been  true  except  in  the  sense  that  men  who  did  not  observe 
the  laws  of  nature,  men  who  did  not  live  according  to  the  laws 
73 


1 154  REVISED  RECORD.  [Wednesday, 

of  God,  and  who  did  not  take  care  of  themselves,  died  before  their 
time.  We  find  such  men  all  along  the  line  from  twenty-five  years 
upwards.  It  is  not  true  that  seventy  years  is  the  limit  of  a  man's 
active  usefulness  on  this  earth.  I  propose,  if  gentlemen  will  indulge 
me  for  a  few  minutes,  to  show  how  wide  that  statement  is  from 
the  real  truth. 

Mr.  Chairman,  every  sentence  of  the  Constitution  should  be 
founded  on  some  great  principle.  We  are  making  a  Constitution 
to  protect  what  the  learned  chairman  of  the  Judiciary  Committee 
has  been  pleased,  ironically,  to  style  natural  rights.  One  would 
almost  think  that  humanity  has  no  natural  rights  from  some  of  the 
slurring  remarks  that  have  been  made  upon  the  subject.  Why,  all 
the  rights  we  have  are  natural  rights. 

Mr.  Hotchkiss  —  Mr.  Chairman,  will  the  gentleman  give  way 
to  a  question? 

The  Chairman  —  The  gentleman  is  out  of  order.  The  gentleman 
from  New  York,  Mr.  Smith,  has  the  floor. 

Mr.  Hotchkiss  —  But,  Mr.  Chairman,  I  understand  the  gentle- 
man offers  me  the  opportunity  to  ask  him  a  question.  Will  the 
Chair  allow  it? 

The  Chairman  —  The  Chair  rules  otherwise.  We  must  get 
through  with  this  talking. 

Mr.  Hotchkiss  —  That  was  one  of  the  objects  I  had  in  asking 
the  question,  Mr.  Chairman. 

The  Chairman  —  The  gentleman  from  New  York,  Mr.  Smith, 
has  the  floor,  and  he  will  proceed  if  he  desires  to  say  anything  more. 

Mr.  Smith  —  I  am  perfectly  willing  to  be  interviewed. 

Mr.  Hotchkiss  —  And  I  am  perfectly  willing  to  interview  you. 

'The  Chairman  —  The  Chair  must  insist  that  the  motion  before 
the  House  is  upon  Mr.  Veeder's  amendment  to  insert  the  word 
"five"  after  the  word  "seventy,"  and  if  the  gentleman  from  New 
York  desires  to  discuss  that  amendment,  he  will  proceed. 

Mr.  Smith  —  Mr.  Chairman,  I  would  like  to  know  where  the 
Judiciary  Committee  got  this  idea  of  limiting  a  man's  right  to  hold 
office  to  seventy  years.  It  certainly  did  not  come  from  Great 
Britain,  it  is  not  in  her  Constitution.  It  certainly  did  not  come  from 
the  Constitution  of  the  United  States.  No  such  limitation  is  to 
be  found  there.  It  never  should  have  been  in  the  Constitution  of 
this  State.  The  first  line  of  the  Constitution  of  this  State  says  that 
no  citizen  shall  be  disfranchised.  What  is  this  prohibition  against  a 
citizen  holding  a  judicial  office  but  a  disfranchisement?  I  had  sup- 


August  22.]  CONSTITUTIONAL  CONVENTION.  1155 

posed  the  learned  chairman  of  the  Judiciary  Committee  would  have 
said  that  it  had  been  discovered  that  some  man,  some  judge,  had 
proved  to  be  physically  or  mentally  incompetent  before  he  reached 
the  age  of  seventy  years,  and  that  that  was  the  reason  for  this 
limitation.  If  he  had  made  such  an  answer  as  that,  we  could  show 
him  thousands  of  men  who  were  incompetent  before  they  had 
reached  sixty  or  fifty  or  forty  or  even  thirty  years.  We  need  not 
go  to  the  limit  of  seventy  years  to  find  ruined  health,  destroyed 
mental  powers,  impaired  vigor.  It  is  all  along  the  line.  There  is 
no  more  reason  for  limiting  the  right  of  a  citizen  of  this  State  in 
the  possession  of  a  great  office  to  seventy  years  than  there  is  in 
limiting  him  to  fifty  years  or  forty. 

Now,  what  are  the  facts  in  respect  to  age?  Take  Chief  Justice 
Marshall  of  the  United  States  Supreme  Court.  He  died  at  the 
age  of  eighty  years,  in  the  full  possession  and  vigor  of  all  his  powers, 
and  in  the  exercise  of  his  great  office.  Some  of  the  most  consum- 
mate judgments  that  he  ever  delivered  were  delivered  after  he  was 
seventy-five  years  of  age.  We  should  never  forget  Chief  Justice 
Marshall  and  never  overlook  the  lesson  of  his  life.  Let  us  next  con- 
sider the  venerable  Stephen  J.  Field,  at  present  one  of  the  justices 
of  the  Supreme  Court  of  the  United  States,  now  seventy-eight  years 
of  age,  and  still  one  of  the  most  active  and  vigorous  members  of 
that  world-renowned  court.  Would  you  disfranchise  him  if  you 
had  the  power?  Let  us  next  study  the  case  of  Chancellor  Kent. 
He  was  appointed  chancellor  of  this  State  in  1814,  and  was  retired 
in  1823  under  the  folly  of  the  provisions  of  our  Constitution  as  it 
then  existed,  at  the  age  of  sixty  years.  It  is  true  that  we  have 
received  a  great  contribution  to  the  literature  of  the  law  by  his 
retirement,  because  it  was  after  his  retirement  that  he  wrote  his 
Commentaries,  which  so  distinguished  him  that  he  has  been  justly 
styled  the  Blackstone  of  America.  He  lived  in  the  full  possession 
of  all'  his  great  faculties  until  he  was  eighty-four  years  of  age.  He 
was  retired  at  sixty,  and  lived  twenty-four  years  after  his  retirement 
and  vigorous  to  the  last. 

The  injustice  of  the  Constitution  as  it  existed  at  that  date,  gave 
us,  it  is  true,  Kent's  Commentaries;  but  it  lost  us  a  great  judge. 
Shortly  after  the  chancellor's  retirement  he  visited  Boston,  where 
he  was  dined  and  lionized.  His  visit  was  one  unbroken  triumph. 
And  at  a  celebrated  dinner  which  was  tendered  him  on  that  occa- 
sion in  Boston,  Judge  Parker  offered  this  toast: 

"The  happy  climate  of  New  York  where  the  moral  sensibilities 
and  intellectual  energies  are  preserved,  long  after  constitutional 
decay  has  begun  to  take  place." 


1156  REVISED  RECORD.  [Wednesday, 

We  have  still  that  same  salubrious  climate,  and  I  trust  that  we 
shall  not  render  the  air  impure  by  any  prejudices  which  we  may 
attempt  to  organize  into  law  in  this  Convention. 

Let  us  continue  the  study  of  our  State  a  little  further.  Take  the 
case  of  Judge  Earl,  now  about  to  be  retired,  one  of  the  most 
learned,  accomplished,  industrious  and  courteous  judges  that  the 
State  of  New  York  has  ever  had.  He  is  good  for  twenty  years 
more,  but  unless  we  change  the  rule  he  must  go  into  retirement 
by  law.  Take  the  case  of  Judge  Charles  Daniels;  able,  industrious, 
honest,  vigorous  and  hale,  he  was  compelled  to  retire,  by  the  folly 
of  our  present  Constitution ;  and  he  left  us  with  the  regrets  of  the  bar, 
and  of  the  entire  people,  of  the  State  of  New  York.  Take  the  case 
of  Judge  Noah  Davis,  an  able  and  consummate  judge,  who  adminis- 
tered the  law  with  firm  determination,  but  with  a  fair  and  impartial 
hand.  He  too  was  disfranchised  by  this  folly,  this  injustice  written 
in  the  chief  law  of  the  State.  Now,  without  spending  too  much  time, 
I  would  like  to  call  attention  for  a  few  moments  to  the  case  of 
the  English  judiciary.  Lord  Coke  lived  and  was  in  actual  service 
until  the  day  of  his  death,  at  eighty-five  years.  Lord  Mansfield,  the 
great  law-giver,  who  did  so  much  to  perfect  the  system  of  the 
common  law,  lived  until  he  was  eighty-eight  years  of  age,  and  in 
possession  of  all  his  faculties.  Lord  Thurlow  lived  until  he  was 
seventy-four;  Lord  Eldon  until  he  was  eighty-seven;  Lord  Abinger 
until  he  was  ninety;  Chancellor  Walworth,  of  this  State,  until  he 
was  seventy-nine. 

Now,  by  what  authority  can  it  be  said  that  this  Convention 
should  disfranchise  any  citizen  because  he  is  seventy  years  of  age? 
If  he  is  infirm  and  not  capable  of  performing  the  duties  of  his  office, 
then  he  should  be  retired,  whether  he  be  seventy  years  of  age  or 
whether  he  be  forty  years  of  age.  It  is  not  a  question  of  age, 
it  is  a  question  of  ability  to  perform  the  duties  of  the  office.  Take 
for  instance  the  examples  before  us  of  the  distinguished  members 
of  this  Convention.  Here  is  my  friend,  Governor  Alvord,  I  will 
put  him  in  as  an  exhibit.  (Applause.)  And  here  is  my  friend, 
Mr.  Francis.  (Applause.) 

But,  Mr.  Chairman,  it  is  not  necessary  to  put  in  any  more  evi- 
dence upon  a  case  so  plain.  I  submit  that  we  should  act  upon 
principle,  and  with  common  sense  and  with  consistency.  I  trust 
that  this  amendment  will  be  adopted.  (Applause.) 

Mr.  Veeder  —  Mr.  Chairman,  I  desire  to  correct  one  error  which 
I  think  was  made  by  the  chairman  of  the  Judiciary  Committee. 
When  asked  how  he  arrived  at  the  age  of  seventy  years,  or  how 
he  determined  that  the  age  of  seventy  years  was  the  proper  age 


August  22.]  CONSTITUTIONAL  CONVENTION.  1157 

limit,  I  understood  him  to  say  that  this  is  indicated  in  the  Consti- 
tution of  the  State  and  of  the  United  States.  There  is  no  provision 
in  the  Constitution  of  the  United  States  about  it.  On  the  contrary 
the  only  provision  of  law  will  be  found  in  the  Revised  Statutes 
of  the  United  States,  which  provide  that  if  a  judge  has  served  ten 
years  and  arrives  at  the  age  of  seventy,  he  may  retire,  but  there 
is  no  provision  by  which  he  shall  be  retired  at  the  age  of  seventy. 

The  Chairman  put  the  question  on  the  adoption  of  Mr.  Veeder's 
amendment,  and  it  was  determined  in  the  negative  by  a  rising  vote 
of  44  to  63. 

At  this  point  the  Convention  adjourned  until  to-morrow  morn- 
ing at  10  o'clock. 

Thursday  Morning,  August  23,  1894. 

The  Constitutional  Convention  of  the  State  of  New  York  met 
in  the  Assembly  Chamber,  at  the  Capitol,  Albany,  N.  Y.,  Thursday, 
August  23,  1894. 

First  Vice-President  Alvord  called  the  Convention  to  order  at 
ten  o'clock. 

The  Rev.  H.  C.  Searles  offered  prayer. 

Mr.  Cookinham  —  Mr.  President,  in  the  absence  of  Mr.  O'Brien 
I  will  take  the  responsibility  of  moving  that  the  reading  of  the 
Journal  be  dispensed  with. 

The  President  pro  tempore  —  If  there  is  no  objection,  the  reading 
of  the  Journal  will  be  dispensed  with. 

Mr.  Giegerich  —  Mr.  President,  I  move  that  the  privileges  of 
the  floor  be  extended  to  the  Hon.  John  J.  Blair  and  his  associates 
of  the  old  volunteer  fire  department  of  New  York  city  during  their 
stay  in  the  city  of  Albany. 

The  President  pro  tempore  put  the  question  on  granting  the  privi- 
lege of  the  floor  to  the  gentlemen  named,  and  it  was  determined  in 
the  affirmative. 

Mr.  Barhite  —  Mr.  President,  on  account  of  an  important  busi- 
ness engagement  I  ask  to  be  excused  on  Saturday  afternoon  and 
Monday. 

The  President  pro  tempore  put  the  question  on  granting  leave  of 
absence  to  Mr.  Barhite,  and  it  was  determined  in  the  affirmative. 

Mr.  McClure  —  Mr.  President,  very  important  and  urgent  busi- 
ness requires  my  attendance  in  New  York  to-morrow  and  possibly 


1158  REVISED  RECORD.  [Thursday, 

Saturday.     I  ask  to  be  excused  for  to-morrow  and  Saturday,  but  I 
think  I  will  be  here  on  the  latter  day. 

The  President  pro  tempore  put  the  question  on  granting  leave  of 
absence  to  Mr.  McClure,  as  requested,  and  it  was  determined  in  the 
affirmative. 

Mr.  Church — Mr.  President,  I  ask  to  be  excused  on  Saturday 
afternoon  and  Monday  on  account  of  important  personal  business 
which  I  am  obliged  to  give  attention  to. 

The  President  pro  tempore  put  the  question  on  granting  leave  of 
absence  to  Mr.  Church,  and  it  was  determined  in  the  affirmative. 

Mr.  Barrow  —  Mr.  President,  I  ask  to  be  excused  to-morrow 
and  Saturday  on  account  of  ill  health  in  my  family. 

The  President  pro  tempore  put  the  question  on  granting  leave  of 
absence  to  Mr.  Barrow,  and  it  was  determined  in  the  affirmative. 

Mr.  Roche  —  Mr.  President,  I  ask  leave  of  absence  on  Saturday 
and  Monday  morning. 

The  President  pro  tempore  put  the  question  on  granting  leave  of 
absence  to  Mr.  Roche,  and  it  was  determined  in  the  affirmative. 

Mr.  Lyon  —  Mr.  President,  I  ask  to  be  excused  Saturday  after- 
noon and  Monday. 

The  President  pro  tempore  put  the  question  on  granting  leave  of 
absence  to  Mr.  Lyon,  and  it  was  determined  in  the  affirmative. 

Mr.  Choate  —  Mr.  President,  I  hope  the  fiasco  of  last  week  will 
not  be  repeated  by  excusing  everybody  who  asks  to  be  excused  on 
Saturday. 

Mr.  Nichols  —  Mr.  President,  I  ask  to  be  excused  for  Saturday 
and  possibly  for  Monday. 

The  President  pro  tempore  put  the  question  -on  the  request  of 
Mr.  Nichols  to  be  excused,  and  it  was  determined  in  the  affirmative. 

Mr.  Pool  —  Mr.  President,  I  ask  to  be  excused  from  Friday 
evening  until  Monday. 

The  President  pro  tempore  put  the  question  on  granting  leave  of 
absence  to  Mr.  Pool,  and  it  was  determined  in  the  affirmative. 

Mr.  J.  Johnson  —  Mr.  President,  I  ask  leave  to  submit  a  report 
from  the  majority  of  the  Committee  on  Cities  on  the  cities  article. 

The  President  pro  tempore  —  The  Chair  understands  this  com- 
mittee has  power  to  report  at  any  time. 

Mr.  J.  Johnson  —  Yes,  sir. 

The  President  pro  tempore  —  That  being  so,  the  report  will  be 
received  and  take  its  place  on  general  orders. 


August  23.]  CONSTITUTIONAL  CONVENTION.  1159 

Mr.  Davenport  —  I  understand  that  leave  will  be  granted  for  the 
dissenting  members  of  the  committee  to  file  their  objection  and 
report. 

Mr.  A.  H.  Green  —  Mr.  President,  my  attention  was  called  to  the 
fact  yesterday  that  my  name  was  recorded  in  the  affirmative  in 
support  of  the  adverse  report  of  the  Suffrage  Committee  on  the 
woman's  suffrage  question.  This  was  a  mistake,  as  I  voted  in  the 
negative.  I,  therefore,  ask  to  have  the  Journal  corrected  in  that 
respect. 

The  Vice-President  —  The  Journal  will  be  corrected  accordingly, 
if  there  is  no  objection. 

Mr.  Acker  will  please  take  the  chair. 

The  Chairman  —  The  Convention  is  still  in  Committee  of  the 
Whole  on  general  order  No.  45,  and  is  considering  section  12. 

Mr.  Veeder  —  Mr.  Chairman,  I  move  to  reconsider  the  vote  by 
which  the  amendment  I  offered  in  Committee  of  the  Whole  last 
evening  was  defeated  or  lost.  I  ask  that  that  motion  be  allowed  to 
lie  upon  the  table  temporarily  until  the  committee  increases  in  num- 
bers, in  order  that  we  may  have  it  considered  by  as  full  a  committee 
as  possible,  and  not  at  the  present  moment.  It  is  a  very  important 
matter,  one  that  I  am  seriously  and  decidedly  in  favor  of,  and  one 
which  I  believe  will  do  away  with  a  great  deal  of  the  question  of 
pensions  and  of  the  retirement  of  judges.  There  are  so  many 
instances  of  the  great  capacity  and  fitness  of  judges  who  are 
approaching  the  age  of  the  present  limit  that  I  sincerely  believe  that 
we  are  doing  ourselves  and  the  people  of  the  State  an  injury  by 
compelling  those  judges  to  retire  from  the  bench  at  the  age  of 
seventy  years.  I,  therefore,  ask  as  a  favor  that  the  question  on  my 
motion  to  reconsider  may  be  considered  by  the  largest  possible 
number  of  the  members  of  this  Convention,  and  that  the  putting  of 
that  motion  be  postponed  for  the  present. 

The  Chairman  —  The  Chair  holds  that  the  motion  must  be  now 
put,  unless  gentlemen  desire  to  debate  the  question.  Gentlemen, 
those  of  you  who  are  in  favor  of  reconsidering  the  vote  by  which 
the  amendment  proposed  by  Mr.  Veeder  to  section  12  was  lost 

Mr.  Root  —  Mr.  Chairman,  I  hope  that  that  vote  will  not  be 
reconsidered. 

Mr.  Veeder  —  Will  Mr.  Root  give  way  for  a  moment?  Does  the 
Chair  hold  that  I  have  not  the  right  to  make  a  motion  to  postpone 
the  taking  of  that  vote? 

The  Chairman  —  The  Chair  so  holds.  The  gentleman  from 
New  York  (Mr.  Root)  has  the  floor. 


Il6o  REVISED  RECORD.  [Thursday, 

Mr.  Root  —  I  hope  that  vote  will  not  be  reconsidered ;  not 
because  I  do  not  think  it  is  perfectly  proper  for  the  Convention  to 
reconsider  a  question,  if  they  wish  to  take  further  or  other  action 
upon  it,  but  because,  it  seems  to  me,  that  no  other  action  ought  to 
be  taken  than  that  which  we  have  taken.  To  impose  a  limit  of 
seventy-five  years  would,  I  think,  be  childish.  It  is  no  limit  at  all. 
And  to  deliberate  here  for  days  upon  the  question  whether  we 
shall  cut  off  pensions,  or  compensations,  or  retired  pay,  after  the 
age  limit  is  reached,  and  then  to  take  off  all  practical  age  limit, 
seems  to  me  to  be  absurd.  Gentleman  say  that  the  people  of  the 
State  will  approve  of  our  action  in  abolishing  judicial  compensa- 
tion after  the  age  limit.  If  we  change  the  limit  to  seventy-five 
years  we  restore  the  pensions.  I  object,  Mr.  Chairman,  to  doing 
it  for  the  benefit  of  any  judge  who  is  now  sitting  upon  the  bench 
and  approaching  the  limit  of  seventy  years,  whether  he  sits  on  the 
bench  of  a  court  in  the  city  of  New  York,  or  upon  .any  other 
bench.  (Applause.)  No  private  or  personal  regard,  respect  or 
affection  for  any  man  would  justify  a  member  of  this  Convention 
in  attempting  to  mold  the  form  of  our  fundamental  law  to  suit 
his  affections  or  his  private  interests,  or  those  of  his  friends.  For 
these  reasons,  Mr.  Chairman,  I  hope  this  vote  will  not  be 
reconsidered. 

The  Chairman  put  the  question  on  the  motion  of  Mr.  Vedder 
to  reconsider,  and,  by  a  rising  vote,  it  was  determined  in  the 
negative. 

Mr.  Dickey  —  Mr.  Chairman,  I  offer  an  amendment. 

The  Secretary  —  Mr.  Dickey  moves  to  add  at  the  end  of  section 
12  the  following: 

"  The  Governor  shall  have  power  to  appoint  to  duty  any 
Supreme  Court  judge  or  justice,  with  his  consent,  whose  term  of 
office  shall  be  so  abridged,  and  he  shall  receive  no  compensation 
therefor." 

Mr.  Dickey  —  The  object  of  this  amendment,  Mr.  Chairman,  is 
to  permit  the  Governor  to  continue  at  work  those  judges  who 
have  been  retired  because  of  reaching  the  age  limit  of  seventy 
years,  if  they  are  willing  and  are  able  to  work,  so  that  they  may  do 
something  to  earn  the  money  that  is  still  to  be  paid  to  them.  That 
is  the  sole  purpose  of  this  amendment.  It  will  entail  no  expense 
upon  the  State.  Some  of  them  are  able  and  willing  to  work,  and 
are  capable  of  doing  as  good  work  as  they  ever  did;  and  this  pro- 
vision permits  of  their  being  called  into  service  in  case  an  emer- 


August  23.]  CONSTITUTIONAL  CONVENTION.  1161 

gency  arises.  It  seems  to  me  the  amendment  should  receive  favor- 
able consideration  at  the  hands  of  this  committee. 

The  Chairman  put  the  question  on  the  amendment  offered  by  Mr. 
Dickey,  and,  by  a  rising  vote,  it  was  determined  in  the  affirmative, 
by  a  vote  of  52  ayes  to  38  noes. 

The  Chairman  —  Are"  there  any  further  amendments  to  sec- 
tion 12? 

Mr.  H.  A.  Clark  —  I  have  an  amendment  to  section  12. 

The  Secretary  —  Mr.  Clark  offers  the  following  amendment: 

"In  section  12,  line  12,  after  the  word  'the,'  insert  the  words 
*  increased  or/  so  that  said  paragraph  will  read: 

"  The  judges  and  justices  hereinbefore  mentioned  shall  receive 
for  their  services  a  compensation  established  by  law,  which  shall  not 
be  increased  or  diminished  during  their  official  terms." 

Mr.  H.  A.  Clark  —  I  do  not  care  to  enter  into  any  long  discussion 
of  this  question,  for  I  think  it  was  thoroughly  discussed  on  a  former 
occasion,  and  yesterday  the  discussion  plainly  showed  the  feelings 
of  this  Convention  in  relation  to  the  salaries  of  the  judges.  There 
is  no  question  but  that  a  large  majority  of  the  members  of  this 
Convention  are  in  favor  of  dealing  fairly  and  honestly  by  the 
judiciary.  They  believe  that  when  a  man  accepts  an  office  with  a 
fixed  salary,  such  acceptance  is  a  contract,  an  agreement,  between 
him  and  the  people,  by  reason  of  which  that  salary  should  be  main- 
tained during  his  term  of  office.  I  believe  it  is  also  an  agreement 
on  his  part  that  for  that  salary  he  shall  perform  the  services  during 
his  term  of  office;  and  if  not  satisfied  with  the  compensation,  he 
has  the  privilege  of  resigning. 

Mr.  Roche  —  I  hope  that  the  amendment  of  Mr.  Clark's  will  be 
adopted.  I  think  we  should  go  back  to  the  principle  of  the  Con- 
stitution of  1846  in  this  respect,  as  well  as  to  the  almost  uniform 
declarations  of  the  present  Constitution.  This  amendment  is 
entirely  in  harmony  with  all  the  provisions  of  our  Constitution, 
except  the  judiciary  article;  and  we  will  present  to-day,  and  have 
presented  for  some  time,  the  very  invidious  spectacle  of  a  Constitu- 
tional Convention,  composed  largely  of  lawyers,  making  distinc- 
tions in  favor  of  members  of  their  own  profession,  and  in  favor  of 
offices  which  they  almost,  of  necessity,  must  themselves  fill;  in 
other  words,  legislating  in  a  different  way,  for  their  own  interests, 
from  what  they  legislate  in  regard  to  any  other  class  of  public  offi- 
cers. It  is  provided  by  the  Constitution,  in  section  24  of  article  13, 
that  "  the  Legislature  shall  not,  nor  shall  the  common  council  of 


Il62  REVISED  RECORD.  [Thursday. 

any  city,  nor  any  board  of  supervisors,  grant  any  extra  compensa- 
tion to  any  public  officer,  servant,  agent  or  contractor."  In  the 
article  of  the  Constitution  relating  to  executive  powers,  it  is  pro- 
vided that  the  Governor  "  shall  receive  for  his  services  an  annual 
salary  of  $10,000,  and  there  shall  be  provided  for  his  use  a  suitable 
and  furnished  executive  residence."  The  section  relating  to  the 
Lieutenant-Governor  fixes  absolutely  his  compensation  at  $5,000 
per  year,  and  declares  that  he  "  shall  not  receive  or  be  entitled  to 
any  other  compensation."  Article  5,  relating  to  the  Secretary  of 
State  and  other  officers,  provides  that  each  "  shall  receive  for  his 
services  a  compensation,  which  shall  not  be  increased  or  diminished 
during  the  term  for  which  he  shall  be  elected;  nor  shall  he  receive 
to  his  use,  any  fees  or  perquisites  of  office  or  other  compensation." 
It  is  provided  in  section  9  of  article  10  that  "  no  officer  whose  salary 
is  fixed  by  the  Constitution  shall  receive  any  additional  compensa- 
tion ;  that  each  of  the  other  State  officers  named  in  the  Constitution 
shall,  during  his  continuance  in  office,  receive  a  compensation  to 
be  fixed  by  law,  which  shall  not  be  increased  or  diminished  during 
the  term  for  which  he  shall  have  been  elected  or  appointed."  When, 
some  years  ago,  a  proposition  was  brought  before  the  Legislature, 
at  the  instigation  of  our  judicial  officers  for  an  increase  of  their 
salaries  (an  increase  which  was  granted),  many  eminent  lawyers 
took  the  position  that  it  was  in  violation  of  the  spirit  of  the  Consti- 
tution and  in  violation  of  the  letter  of  section  9  of  article  10;  but 
it  was  claimed  that  because  the  word  "  increased  "  was  not  found 
before  the  word  "  diminished  "  in  the  judiciary  article,  that,  there- 
fore, it  was  allowable  to  the  Legislature  to  increase  the  salaries  of 
judicial  officers. 

The  Constitution  of  1846  contained  this  provision,  which 
remained  the  law  of  this  State  down  to  1870: 

"  The  judges  of  the  Court  of  Appeals  and  justices  of  the  Supreme 
Court  shall  severally  receive,  at  stated  times,  for  their  services,  a 
compensation  to  be  established  by  law,  which  shall  not  be  increased 
or  diminished  during  their  continuance  in  office." 

When  the  proposition  to  alter  that  was  before  the  Convention 
of  1867-8,  it  was  very  strenuously  opposed,  and  I  can  do  nothing 
better  now  than  call  the  attention  of  the  Convention  to  the  remarks 
which  were  then  made  by  Mr.  John  E.  Develin,  a  very  eminent 
lawyer,  and  a  delegate  from  the  city  of  New  York  in  that  Conven- 
tion. He  said: 

"  Mr.  President,  I  move  to  strike  out  the  words  in  the  fifth  line 
'  except  judicial  officers.'  In  the  Constitution  of  1846  it  was 
expressly  declared  that  no  change  should  be  made  in  the  compensa- 


August  23.]  CONSTITUTIONAL  CONVENTION.  1163 

tion  of  judicial  officers.  There  is  no  more  dangerous  proposition 
than  to  give  the  Legislature  the  power  to  increase  the  compensation 
of  those  who  shall  define  the  meaning  of  the  laws  that  are  passed 
by  it.  All  men  are  weak,  and  all  men  are  subject  to  influences  of 
money.  All  men  are  subject  to  the  influences  of  an  increased  com- 
pensation, and  when  it  comes  up  in  high  political  times  that  judi- 
cial officers  are  to  decide  what  is  the  meaning  of  a  law  that  may 
affect  the  politics  of  the  State  or  the  interests  of  gentlemen  who 
are  high  in  office  in  the  State,  and  a  bait  is  held  out  to  them  that, 
if  a  decision  is  made  this  way  or  that  way,  their  compensation  will 
be  increased,  it  will  have  a  strong  influence  upon  their  views  of  the 
law  and  its  construction.  I  think  it  is  a  dangerous  provision  to 
put  in  the  organic  law  that  the  Legislature  may  increase,  as  it 
pleases,  the  compensation  of  the  judicial  officers  of  the  State." 

In  spite  of  the  warning  of  Mr.  Develin  and  others  that  Convention 
did  strike  out  the  words  "  increased  or,"  with  the  result  that  twice 
since  the  adoption  of  that  Constitution  the  Legislature  has  been 
appealed  to,  at  the  instance  of  judges  of  the  Court  of  Appeals 
and  of  the  Supreme  Court,  to  increase  their  salaries,  and  the 
increases  have  been  granted. 

Now,  Mr.  Chairman,  I  believe  in  paying  the  officers  of  our  courts 
salaries  which  will  be  commensurate  with  their  positions,  salaries 
that  will  enable  them  to  live  as  gentlemen,  having  reference  to 
the  dignity  and  honor  of  the  places  they  fill,  salaries  that  will 
enable  them,  with  ordinary  thrift  and  care,  to  lay  up  something,  as 
I  said  the  other  day,  for  the  inevitable  rainy  day;  but  I  submit  that 
we  should  not  make  a  distinction  between  them  and  any  other  class 
of  public  officers.  They  are  in  receipt  of  large  salaries.  We  are 
paying  the  judges  of  our  Court  of  Appeals  larger  salaries  than  are 
being  paid  the  judges  of  the  Supreme  Court  of  the  United  States. 
We  are  paying  them  larger  salaries  than  are  paid  to  the  judges  of 
the  highest  courts  of  Pennsylvania  and  Massachusetts.  We  are 
are  paying  to  the  justices  of  our  Supreme  Court  larger  salaries 
than  are  paid  to  the  judges  of  the  highest  courts  of  some  of  the 
most  important  commonwealths  in  this  country.  Some  of  these 
judges  are  now  receiving  salaries  which  are  at  least  twice  as  large  as 
the  moneys  they  earned  when  practitioners.  They  not  only  receive 
those  large  salaries,  but  the  counties  furnish  them  office  room 
so  that  they  have  no  rent  to  pay;  they  have  clerks  at  the  public 
expense,  and  many  of  them  are  located  in  places  where  there  are 
adequate  law  libraries  so  that  they  are  not  compelled  to  buy  books. 
They  are  entirely  willing  to  keep  those  positions.  They  are  not 
driven  into  them.  They  are  very  glad  to  obtain  them,  and  I  am 


1164  REVISED  RECORD.  [Thursday, 

sorry  to  say  that  it  is  one  of  the  scandals  of  our  day  in  connection 
with  our  political  affairs,  that  men  seeking  these  positions  pay 
extraordinarily  high  prices,  which  are  nothing  else  than  corruption 
funds,  for  the  purpose  of  obtaining  those  places.  Now,  Mr.  Chair- 
man, I  do  hope  that  we  will  not  permit  the  judges  who  are  influential 
with  the  legislators  and  with  the  lawyers  of  the  Legislature  (and 
the  lawyers,  as  a  rule,  are  in  the  majority  in  our  Legislature),  to  go 
and  lobby  before  them  for  increases  of  their  salaries,  which  cannot 
be  granted  to  any  other  class  of  officers.  I  hope  that  we  shall  not 
see  the  spectacle  of  justices  of  the  Supreme  Court  summoning 
former  clients,  well-to-do  and  influential  clients,  or  large  corpora- 
tions for  whom  they  had  acted  before  they  went  on  the  bench,  to 
use  their  influence  in  the  halls  of  legislation  to  get  their  salaries 
increased  beyond  the  sums  at  which  they  were  fixed  when  they 
sought  the  office  and  for  which  they  agreed  that  they  would  per- 
form the  duties  of  the  office. 

I  know  it  has  been  stated,  Mr.  Chairman,  that  we  should  permit 
them  an  advance,  because  we  elect  the  justices  of  the  Court  of 
Appeals  and  of  the  Supreme  Court  for  long  terms.  But  what  dif- 
ference does  that  make.  Every  man  who  seeks  and  accepts  a 
position  knows  the  length  of  the  term,  does  he  not?  He  is  entirely 
willing  to  take  it  for  the  long  term,  and  would  be  very  glad  if  the 
term  were  twenty-one  instead  of  fourteen  years.  How  does  the 
length  of  the  term  alter  the  principle  that  is  involved  here?  It  is 
said  that  the  cost  of  living  may  be  increased  during  this  long  term, 
and  that  what  would  be  fair  compensation  when  the  man  was  elected 
might  be  inadequate  in  the  course  of  ten  or  fourteen  years.  Now, 
Mr.  Chairman,  there  might  be  some  force  in  that  argument  if  the 
salaries  of  the  justices  of  the  Supreme  Court  and  of  the  Court  of 
Appeals  were  what  they  were  in  1867,  or  what  they  were  during 
the  early  years  of  the  war;  but  they  have  now  been  increased 
under  the  provisions  of  our  present  Constitution  to  sums  amply 
sufficient  to  enable  these  gentlemen  to  support  all  the  judicial  style 
and  dignity  that  is  necessary.  Is  there  any  force  in  the  argument? 
If  it  is  true  that  we  should  not  put  on  this  limitation  to  increase 
in  order  that  they  may  be  enabled  to  meet  the  cost  of  increased 
living  which  may  occur,  then  the  reverse  of  that  proposition  is 
true,  is  it  not?  If  the  salary  should  be  increased  because  of  the 
high  cost  of  living,  then  when  the  cost  of  living  goes  down  the 
salary  should  be  decreased,  should  it  not?  But  yet  you  propose 
to  put  in  this  Constitution,  and  you  have  it  in  your  Constitution 
now,  thai:"  the  salaries  shall  not  be  diminished.  You  thus  put  an 
effectual  bar  on  the  State  receiving  the  benefit  of  low  prices  of 


August  23.]  CONSTITUTIONAL  CONVENTION.  1165 

living,  and  you  prohibit  the  State  from  reducing  the  salaries.  That 
argument,  if  there  were  any  force  in  it,  would  apply  equally  well 
to  a  Governor  who  may  be  elected  eight  or  ten  years  from  now,  or 
to  a  Lieutenant-Governor.  The  prices  to-day  of  every  yard  of 
calico,  of  every  pound  of  butter,  of  every  ton  of  coal,  of  every 
barrel  of  flour,  are  much  less  than  they  were  twenty  or  twenty-five 
years  ago,  and  yet  we  do  not  hear  of  any  proposition  to  reduce  or 
diminish  the  salaries  of  the  judges  of  these  courts  because  prices 
have  fallen.  Not  at  all. 

Now,  Mr.  Chairman,  I  believe  in  equality  in  this  thing.  Let  us 
keep  these  men  out  of  the  temptation  of  lobbying  and  seeking  to 
influence  legislators.  Men  are  weak,  and  judges  of  courts  do  not, 
when  they  go  upon  the  bench,  become  angels  with  wings  on  them. 
Let  us  have  equality  in  this  thing.  Let  not  members  of  the  legal 
profession  make  this  very  invidious  distinction,  with  regard  to 
the  judges  of  these  courts.  As  they  are  now  receiving  substantial 
salaries,  and  as  they  were  very  glad  to  obtain  the  positions  they 
hold,  let  us  make  a  provision  in  the  Constitution  which  will  remove* 
the  possibility  of  any  inequality  or  of  scandal  or  abuse  in  connection 
with  this  subject. 

Mr.  Mereness  —  Mr.  Chairman,  if  I  understand  this  judiciary 
article,  the  increases  already  provided  for  amounts  to  the  following 
sums:  The  increase  in  the  salaries  of  the  three  judges  in  Brooklyn" 
will  amount  to  $9,600,  of  the  twelve  judges  in  New  York  to  $30,000, 
of  the  three  judges  in  Buffalo  to  $3,600.  It  is  a  provision  for  an 
increase  of  $43,200  per  year,  and,  if  this  Constitution  shall  have 
the  good  fortune  to  be  adopted  by  the  people,  in  the  next  twenty 
years  the  increase  will  amount  to  nearly  a  million  dollars.  If  the 
article  is  adopted,  the  salaries  of  the  justices  of  the  Supreme  Court 
of  this  State  will  amount  to  the  enormous  sum  of  $845,800  per 
annum.  Now,  Mr.  Chairman,  we  have  already  had  an  example 
of  an  increase  in  the  salaries  of  the  judges  of  the  Court  of  Appeals, 
because  nearly  every  one  present  is  aware  of  the  fact  that  a  few 
years  ago  these  salaries  were  increased  from  $7,000  per  annum  to 
$10,000  per  annum,  which,  with  the  allowance,  made  the  salary 
virtually  $9,000,  and  makes  it  $12,000  now.  I  am  willing 
Mr.  Chairman,  to  make  a  comparison  between  the  judges  who  were 
elected  when  the  salary  was  $9,000  per  annum  and  those  who  have 
been  elected  since.  LTnder  the  former  system  Judge  Church,  Judge 
Allen,  Judge  Folger,  Judge  Rapallo  and  the  elder  Judge  Peckham 
were  elected ;  since  that  time,  I  am  frank  to  say  that  the  comparison 
would  not  be  in  favor  of  the  more  recent  accessions  to  the  bench. 

It  has  been  said  that  the  people  adopted  the  Constitution  which 


Il66  REVISED  RECORD.  [Thursday, 

allowed  the  judges  to  get  their  salaries  increased;  but  I  would  like 
to  call  the  attention  of  delegates  to  the  fact  that  the  constitutional 
provision  was  adopted  at  a  time  when  the  respective  political  com- 
mittees of  the  great  cities  of  this  State  could  bunch  the  tickets  in 
favor  of  or  against  propositions  to  amend  the  Constitution,  and 
they  went  to  the  ballot-box  with  rubber  bands  around  them,  and 
without  any  idea  on  the  part  of  most  of  the  voters  what  the  pro- 
posed constitutional  amendments  were. 

I  will  not  take  up  the  time  of  this  Convention  by  going  over  the 
arguments  on  this  subject,  because,  when  the  general  subject  was 
before  us  on  a  former  occasion,  it  was  plainly  demonstrated  that 
this  idea  was  a  fundamental  one,  because  it  is  recognized  in  several 
other  places  in  the  Constitution  of  this  State,  as  well  as  in  the  Con- 
stitutions of  sixteen  other  States,  and  it  seems  to  me  that  it  is 
ridiculous  for  this  Convention  of  lawyers,  after  having  provided 
for  this  great  increase  in  the  salary  list  of  the  judges  of  this  State, 
to  ask  the  people  to  create  this  privileged  class.  It  seems  to  me 
that  we  had  better  cut  that  out.  There  will  be  enough  other  objec- 
tionable features  in  the  proposed  Constitution,  in  all  probability, 
and  it  seems  to  me  that  at  least  we  had  better  eliminate  this  objec- 
tionable feature. 

Mr.  Root  —  Mr.  Chairman,  this  provision  regarding  judicial 
salaries  was  reported  exactly  as  it  now  is  in  the  Constitution,  for 
the  reason  that  the  Convention  then  had  before  it  another  amend- 
ment, the  whole  subject  of  increasing  and  diminishing  salaries.  It 
was  so  reported  without  any  vote  upon  the  question  as  to  whether 
the  word  "  increased  "  should  be  put  in  or  left  out,  although  that 
was  suggested  and  discussed  in.  the  committee,  because  the  com- 
mittee did  not  wish  to  put  themselves  in  the  position  of  acting  on 
a  matter  already  under  discussion  in  the  Convention.  If  the  com- 
mittee had  come  to  a  vote,  I  am  satisfied,  from  the  individual 
expression  of  their  opinions,  that  that  vote  would  have  agreed  with 
the  views  expressed  by  the  gentleman  who  has  just  spoken.  A 
large  majority  of  the  members  of  the  Judiciary  Committee  would 
have  voted  and  now  are  ready  to  vote  to  make  the  amendment 
which  has  been  suggested,  so  that  the  salaries  of  the  judges  shall 
neither  be  increased  nor  diminished  during  their  terms  of  office. 
(Applause.)  My  own  personal  views  about  it  are  that,  although 
it  is  possible  that  some  exigency  may  arise  in  which  it  might  be 
fair  to  increase  the  salaries,  nevertheless,  the  evils  that  may  result 
from  enabling  members  of  the  judiciary  department  to  use  their 
official  power  to  attempt  to  secure  an  increase  of  salaries  are  so 
much  greater  than  any  contingent  evils  the  other  way,  that  we 


August  23.]  CONSTITUTIONAL  CONVENTION.  1167 

ought  to  put  them  in  a  position  of  independence,  both  one  way  and 
the  other.  Therefore,  Mr.  Chairman,  I  shall  vote  for  the 
amendment. 

The  Chairman  put  the  question  on  the  amendment  offiered  by 
Mr.  Clark,  and  it  was  determined  in  the  affirmative. 

The  Chairman  —  Are  there  any  further  amendments  to  sec- 
tion 12? 

Mr.  C.  A.  Fuller  —  Mr.  Chairman,  I  offer  an  amendment. 

The  Secretary  —  Mr.  Fuller  offers  the  following  amendment :  On 
page  9,  line  14,  after  the  word  "  court,"  insert  the  words  "  including 
judges  and  justices  of  inferior  courts  not  of  record." 

Mr.  C.  A.  Fuller  —  The  amendment  which  I  propose  will  cause 
that  part  of  the  section  to  read  as  follows : 

"  No  person  shall  hold  the  office  of  judge  or  justice  of  any  court, 
including  judges  and  justices  of  inferior  courts  not  of  record, 
longer  than  until  and  including  the  last  day  of  December  next  after 
he  shall  be  seventy  years  of  age." 

I  do  not  stand  here  to  advocate  this  amendment  in  any  dogmatic 
way,  nor  to  say  that  it  certainly  ought  to  prevail.  If  it  should  be 
that  this  matter  had  been  called  to  the  attention  of  the  Judiciary 
Committee  and  they  had  intelligently  discussed  it  and  decided  that 
these  inferior  judges  and  justices  should  not  have  the  age  limitation 
put  upon  them,  I  believe  in  that;  but,  sir,  a  great  body  of  the  liti- 
gation of  the  State  is  carried  on  in  these  inferior  courts  throughout 
the  State.  I  suppose  that  there  are  5,000  or  6,000  justices  of  the 
peace  in  the  State  of  New  York,  and  they  have  a  considerable 
jurisdiction.  They  may  try  cases  where  the  amount  involved  does 
not  exceed  $200.  They  try  a  good  number  of  criminal  causes. 
They  are  committing  magistrates.  And  I  think,  since  this  is,  I 
might  say,  pre-eminently  the  people's  court,  the  people  are  entitled 
to  officers  holding  those  positions  who  are  still  in  the  full  maturity 
of  their  powers.  I  think  the  action  of  this  Convention  shows 
that  it  is  its  sense  that  after  the  age  of  seventy  there  is  a  liability 
that  the  intellectual  powers  may  decline,  that  there  may  not  be  that 
power  to  apply  the  mind  to  important  questions  put  upon  a  person 
holding  a  court  that  would  be  held  by  a  person  of  younger  years. 
The  justices  of  these  courts  take  their  own  minutes,  keep  their 
own  records  and  make  their  own  documents,  and  oftentimes  they 
are  engaged  in  trials  from  early  in  the  morning  until  late  at  night, 
which  is  a  great  strain  upon  any  person  engaged  in  such 
immense  labors.  Cases  are  tried  in  these  courts  sometimes  that 


Il68  REVISED  RECORD.  [Thursday, 

call  for  as  great  ability  as  in  any  other  courts  of  record,  and,  there- 
fore, it  seems  to  me  that  it  would  be  wise  to  make  this  clearer  in 
the  Constitution.  In  the  judiciary  article  that  was  adopted  in  the 
Constitution  submitted  in  1869  this  matter  was  left  in  such  condi- 
tion that  as  late  as  1884  the  Supreme  Court  of  this  State  decided 
that  these  officers  were  rendered  ineligible  after  the  age  of  seventy, 
and  it  required  the  Court  of  Appeals  to  decide  that  the  construction 
of  the  section  did  not  include  them  in  this  prohibition. 

Mr.  Cady  —  Mr.  Chairman,  I  would  make  the  suggestion  to  the 
delegate  who  has  just  proposed  this  amendment  that  a  more  appro- 
priate place  may  be  found  for  it  in  section  17,  which  relates  to 
justices  and  judges  of  inferior  courts  than  in  this  part  of  the  article, 
which  relates  to  judges  of  the  Court  of  Appeals  and  justices  of  the 
Supreme  Court.  A  similar  provision  in  relation  to  county  judges 
and  surrogates  is  made  in  section  14,  and  I  think  that  this  amend- 
ment ought  to  be  deferred  for  the  sake  of  symmetry  until  that 
part  of  the  article  -relating  to  justices  and  judges  of  the  inferior 
courts  is  reached.  I  make  that  suggestion. 

The  Chairman  put  the  question  on  the  adoption  of  the  amend- 
ment offered  by  Mr.  Fuller,  and  it  was  determined  in  the  negative. 

The  Chairman  —  Are  there  any  further  amendments  to 
section  12? 

Mr.  I.  S.  Johnson — Mr.  Chairman,  I  move  to  amend  section  12 
by  inserting  in  line  14,  page  9,  after  the  word  "  court,"  the  words 
"  except  as  herein  provided." 

We  have  this  peculiar  anomaly  just  now  of  having  provided  that 
no  person  shall  hold  the  office  of  judge  or  justice  of  any  court 
longer  than  until  and  including  the  last  day  of  the  December  next 
after  he  shall  be  seventy  years  of  age.  We  have  just  provided  that 
the  Governor  may  designate  one  of  these  persons,  who  must,  by 
this  Constitution,  cease  to  be  a  judge,  to  perform  the  duties  of  a 
judge.  If  this  is  to  be  done,  it  seems  to  me  that  we  should  have 
some  provision  in  this  by  which  he  may  be  continued  as  a  judge; 
an'd  hence  I  have  suggested  the  insertion  of  the  words  "  except  as 
herein  provided." 

Mr.  Root  —  Mr.  Chairman,  will  not  the  effect  of  those  words  be 
the  nullification  of  the  whole  provision?  Because  it  is  otherwise 
provided  that  the  justices  shall  hold  their  office  for  fourteen  years. 
The  amendment  proposed  by  Mr.  Dickey  and  adopted,  is  in  the 
nature  of  an  exception  to  this  general  proposition.  It  does  not 
seem  to  me  that  it  is  necessary  to  enforce  the  exception  by  saying 
in  an  independent  clause  that  it  is  an  exception. 


August  23.]  CONSTITUTIONAL  CONVENTION.  1169 

The  Chairman  put  the  question  on  the  adoption  of  the  amend- 
ment offered  by  Mr.  Johnson,  and  it  was  determined  in  the  negative. 

The  Chairman — -Are  there  any  further  amendments  to  section 
12?  If  the  Chair  hears  none,  the  Secretary  will  read  section  13. 

The  Secretary  read  section  13  in  the  language  following: 

"  Sec.  13.  The  Assembly  shall  have  the  power  of  impeachment, 
by  a  vote  of  a  majority  of  all  the  members  elected.  The  court  for 
the  trial  of  impeachments  shall  be  composed  of  the  President  of  the 
Senate,  the  Senators,  or  a  major  part  of  them,  and  the  judges  of 
the  Court  of  Appeals,  or  the  major  part  of  them.  On  the  trial  of 
an  impeachment  against  the  Governor  or  Lieutenant-Governor,  the 
Lieutenant-Governor  shall  not  act  as  a  member  of  the  court.  No  judi- 
cial officer  shall  exercise  his  office,  after  articles  of  impeachment 
against  him  shall  have  been  preferred  to  the  Senate,  until  he  shall 
have  been  acquitted.  Before  the  trial  of  an  impeachment,  the  mem- 
bers of  the  court  shall  take  an  oath  or  affirmation  truly  and  impar- 
tially to  try  the  impeachment  according  to  the  evidence,  and  no 
person  shall  be  convicted  without  the  concurrence  of  two-thirds 
of  the  members  present.  Judgment  in  cases  of  impeachment  shall 
not  extend  further  than  to  removal  from  office,  or  removal  from 
office  and  disqualification  to  hold  and  enjoy  any  office  of  honor, 
trust  or  profit  under  this  State,  but  the  party  impeached  shall  be 
liable  to  indictment  and  punishment  according  to  law." 

The  Chairman  —  Are  there  any  amendments  to  section  13?  If 
the  Chair  hears  none,  the  Secretary  will  read  section  14. 

The  Secretary  read  section  14  in  the  language  following: 

"Sec.  14.  The  existing  County  Courts  are  continued,  and  the 
judges  thereof  now  in  office  shall  hold  their  offices  until  the  expira- 
tion of  their  respective  terms.  In  the  county  of  Kings  there  shall 
be  two  county  judges,  and  the  additional  county  judge  shall  be 
chosen  at  the  next  general  election  held  after  the  adoption  of  this 
article.  The  successors  of  the  several  county  judges  shall  be  chosen 
by  the  electors  of  the  counties  for  the  term  of  six  years.  County 
Courts  shall  have  the  powers  and  jurisdiction  they  now  possess, 
and  also  original  jurisdiction  in  actions  for  the  recovery  of  money 
only,  where  the  defendants  reside  in  the  county,  and  in  which  the 
complaint  demands  judgment  for  a  sum  not  exceeding  $2,000.  The 
Legislature  may  hereafter  enlarge  or  restrict  the  jurisdiction  of  the 
County  Courts,  provided,  however,  that  their  jurisdiction  shall  not 
be  so  extended  as  to  authorize  an  action  therein  for  the  recovery 

74 


U70  REVISED  RECORD.  [Thursday, 

of  money  only  in  which  the  sum  demanded  exceeds  $2,000,  or  in 
which  any  person,  not  a  resident  of  the  county,  is  a  defendant. 

Courts  of  Sessions,  except  in  the  county  of  New  York,  are 
abolished  from  and  after  the  last  day  of  December,  1895.  All  the 
jurisdiction  of  the  Court  of  Sessions  in  each  county,  except  the 
county  of  New  York,  shall  thereupon  be  vested  in  the  County  Court 
thereof,  and  all  actions  and  proceedings  then  pending  in  such  Courts 
of  Sessions  shall  be  transferred  to  said  County  Courts  for  hearing 
and  determination.  Every  county  judge  shall  perform  such  duties 
as  may  be  required  by  law.  His  salary  shall  be  established  by 
law,  payable  out  of  the  county  treasury.  A  county  judge  of  any 
county  may  hold  County  Courts  in  any  other  county  when  requested 
by  the  judge  of  such  other  county." 

Mr.  Lincoln  —  Mr.  Chairman,  I  have  a  substitute  which  I  wish 
to  offer  for  the  first  paragraph  of  section  14. 

The  Secretary  read  the  substitute  offered  by  Mr.  Lincoln  in 
the  language  following: 

"  The  existing  County  Courts  are  continued,  and  the  judges 
thereof  now  in  office  shall  hold  their  offices  until  the  expiration  of 
their  respective  terms.  In  the  county  of  Kings  there  shall  be  two 
county  judges,  and  the  additional  county  judge  shall  be  chosen  at 
the  next  general  election  held  after  the  adoption  of  this  article. 
The  successors  of  the  several  county  judges  shall  be  chosen  by  the 
electors  of  the  counties  for  the  term  of  six  years.  The  County 
Courts  shall  have  general  original  jurisdiction  in  law  and  equity  in 
all  cases  where  the  defendants  reside  in  the  county,  subject  to  such 
appellate  jurisdiction  of  the  Supreme  Court  or  Court  of  Appeals  as 
may  be  prescribed  by  law.  Such  County  Courts  shall  also  have 
such  appellate  jurisdiction  as  may  be  provided  by  law,  subject, 
however,  to  such  provision  as  shall  be  made  by  law  for  the  removal 
of  causes  into  the  Supreme  Court.  They  shall  also  have  such  fur- 
ther original  jurisdiction  as  shall,  from  time  to  time,  be  conferred 
upon  them  by  the  Legislature." 

Mr.  Lincoln  —  Mr.  Chairman,  the  object  of  this  proposed  amend- 
ment is  to  give  to  the  County  Courts  general  original  jurisdiction 
in  law  and  equity  in  local  actions,  or  in  actions  in  which  the  defend- 
ants reside  in  the  county.  This  amendment  is,  in  substance,  the 
same  as  the  overture  (No.  172),  which  was  introduced  by  me  and 
which  went  to  the  Judiciary  Committee.  The  committee,  instead 
of  reporting  this  amendment  increasing  the  general  jurisdiction  of 
the  court,  saw  fit  to  increase  simply  jurisdiction  so  far  as  money 
demands  were  concerned,  and  raised  the  money  limit  from  $1,000 


August  23.]  CONSTITUTIONAL  CONVENTION.  1171 

to  $2,000,  leaving  the  jurisdiction  substantially  as  it  was  before  in 
other  respects.  Now,  it  seems  to  me  that  the  time  has  come  in  the 
history  of  this  State  when  we  ought  to  put  our  County  Courts 
back  upon  the  same  basis,  at  least,  occupied  by  the  old  Courts  of 
Common  Pleas,  and  when  we  ought  to  give  to  those  courts  the 
jurisdiction  which  may  be  necessary  to  enable  suitors  to  transact  all 
business  in  that  court  as  to  local  actions  which  they  may  see  fit 
to  do,  so  that  if  a  person  wishes  to  bring  an  action  in  a  County 
Court,  he  shall  not  be  driven  out  of  it  by  a  technically  equitable 
objection,  but  shall  be  able  to  pursue  his  litigation  to  the  end  in  that 
court,  and  there  will  be  the  same  right  of  appeal  from  the  judgment 
of  the  County  Court  as  from  the  judgment  of  the  Supreme  Court  at 
a  trial  term.  Now,  I  suppose  it  is  well  known  that  the  County 
Courts  in  1846  superseded  the  old  Courts  of  Common  Pleas,  and 
it  may  be  worth  while  for  us  to  follow  for  a  moment  the  history  of 
the  old  Courts  of  Common  Pleas  in  this  State.  Those  courts 
originally  in  the  colony  of  New  York  had  extensive  jurisdiction. 
They  were  courts  of  original  jurisdiction  and  had  power  to  hear, 
try  and  determine  almost  any  kind  of  an  action.  The  Constitution 
of  1777  made  no  special  provision  for  this  class  of  courts  nor  for  any 
other  courts,  in  fact.  It  recognized  the  existing  courts,  and  the 
Legislature  of  1787  passed  an  act  relating  to  Courts  of  Common 
Pleas  in  the  various  counties  of  the  State,  in  which  it  gave  power 
to  those  courts  to  "  hear,  try  and  determine,  according  to  law,  all 
actions,  real,  personal  and  mixed  suits,  quarrels,  controversies  and 
differences  arising  within  the  several  and  respective  counties  for 
which  the  same  are  or  shall  be  held."  So  that  the  only  limitation 
upon  those  courts,  according  to  that  provision  of  the  early  statute, 
was  as  to  the  locality  of  the  action,  and  the  Supreme  Court,  in  con- 
struing the  section  relating  to  the  jurisdiction  of  the  Court  of 
Common  Pleas,  held  that  that  court  was  a  court  of  .general  juris- 
diction. The  revision  of  1828  continued  the  jurisdiction  of  the 
County  Courts  in  this  language,  which  I  will  read  from  the  Revised 
Statutes : 

"There  shall  continue  to  be  a  Court  of  Common  Pleas  in  each 
county  of  this  State,  which  shall  possess  the  powers  and  exercise 
the  jurisdiction  which  belong  to  the  Courts  of  Common  Pleas  of  the 
several  counties  in  the  colony  of  New  York,  with  the  additions, 
limitations  and  exceptions  created  and  in  force  by  the  Constitution 
and  the  laws  of  this  State,  and  every  such  court  shall  have  power 
(i)  to  hear,  try  and  determine,  according  to  law,  all  local  actions 
arising  within  the  county  for  which  such  court  shall  be  held,  and 
all  transitory  actions,  although  the  same  may  not  have  arisen 


1 172  REVISED  RECORD.  [Thursday, 

within  such  county."  This  section  contains  other  provisions  relat- 
ing to  the  jurisdiction  of  the  court,  but  I  have  read  enough  to  show 
the  general  scope  of  the  statute  as  to  the  jurisdiction  of  the  Court 
of  Common  Pleas  that  makes  it  a  court  of  general  original  jurisdic- 
tion. That  court  continued  until  1845,  or  unt^  tne  Ist  °f  July>  ^47, 
when  it  went  out  of  existence  by  virtue  of  a  constitutional  pro- 
vision adopted  by  the  Convention  of  1846.  And  the  framers  of  that 
Constitution  seemed  to  have  intended  —  and  they  seem  to  have 
accomplished  their  purpose  —  the  destruction  of  the  Court  of  Com- 
mon Pleas.  They  wiped  it  out  of  existence,  and  they  gave  us 
instead  what  they  were  pleased  to  call  a  County  Court,  and  the 
County  Court  was  limited  in  its  powers  and  jurisdiction.  I  will 
read  some  of  the  provisions  of  the  Constitution  of  1846,  so  that  it 
can  be  seen  how  the  powers  and  the  jurisdictions  of  the  County 
Court  were  reduced: 

"  There  shall  be  elected  in  each  of  the  counties  of  this  State, 
except  the  city  and  county  of  New  York,  one  county  judge,  who 
shall  hold  his  office  for  four  years.  He  shall  hold  a  County  Court 
and  perform  the  duties  of  surrogate.  The  County  Court  shall  have 
such  jurisdiction,  in  cases  arising  in  Justices'  Court  and  in  special 
cases  as  the  Legislature  may  prescribe,  but  shall  have  no  original 
civil  jurisdiction,  except  in  such  special  cases." 

Thus  they  reduced  the  County  Court  to  a  court  which  had  juris- 
diction, as  a  practical  question,  simply  to  hear  and  determine  appeals 
from  the  Justices'  Courts.  Now,  I  have  had  occasion  to  examine, 
in  my  own  county,  the  comparative  business  of  the  two  courts, 
while  the  Court  of  Common  Pleas  was  in  existence,  and  the  records 
of  the  court  show  that  for  the  thirty  years  that  that  court  was  in 
existence,  in  Cattaraugus  county,  the  Court  of  Common  Pleas  did 
five  times  the  amount  of  business  that  was  done  in  the  Supreme 
Court.  The  -necessary  effect  of  the  Constitution  of  1846  was  to 
somewhat  degrade  the  court.  The  old  Court  of  Common  Pleas 
was  a  popular  court.  It  was  the  people's  court.  The  people  went 
into  that  court  for  the  redress  of  local  grievances.  It  had  ample 
jurisdiction  and  it  had  power  to  determine  all  those  local  questions, 
and,  besides  that,  it  had  the  confidence  of  the  people;  and  I  think 
Cattaraugus  county  is  not  an  exception  to  the  rule  that  the  Court 
of  Common  Pleas  was  the  people's  court  when  it  was  in  existence. 
The  Constitution  of  1846  enlarged  the  jurisdiction  of  the  County 
Court  to  an  amount  not  exceeding  $1,000,  and  that  is  the  rule 
to-day.  The  only  change  made  to-day  in  the  article  is  the  increase 
of  that  limit  from  $1,000  to  $2,000.  Now,  I  think  all  these  dis- 
tinctions should  be  swept  away,  and  that  the  County  Court  should 


August  23.]  CONSTITUTIONAL  CONVENTION.  1173 

have  general  jurisdiction  as  to  all  actions  within  the  county.  It 
is  claimed  that  if  the  County  Court  is  given  this  jurisdiction,  a 
plaintiff  may  have  a  choice  of  tribunals,  which  may,  possibly,  work 
to  the  detriment  of  the  defendant.  Surely,  the  choice  of  tribunals 
must  always  rest  with  the  plaintiff,  because  he  must  begin  the  action. 
He  does  not  have  to  go  to  the  defendant  to  find  out  whether  he 
may  commence  an  action  or  not.  But  that  suggestion  is  met,  so 
far  as  common-law  actions  are  concerned,  by  the  provision  as  it 
now  exists.  The  plaintiff  has  the  choice  of  tribunals  now.  Under 
this  provision,  if  agreed  to,  he  may  bring  an  action  in  the  County 
Court,  or  he  may  bring  it  in  the  Supreme  Court,  or  if  it  does  not 
exceed  $200,  he  may  bring  it  in  a  Justices'  Court.  It  is  entirely 
optional  with  him.  The  County  Courts  ought  to  have  the  oppor- 
tunity to  do  a  larger  business  so  that  they  may  somewhat  relieve 
the  Circuit  Courts  and  the  Special  Terms  of  the  Supreme  Courts  in 
the  various  actions  that  are  now  brought  there,  but  which  might 
as  well  be  brought  in  a  County  Court.  It  is  claimed  that  the  pro- 
vision, as  recommended  by  the  committee,  authorizes  the  Legisla- 
ture to  enlarge  the  jurisdiction  of  the  County  Courts.  This  question 
ought  to  be  put  where  it  will  be  beyond  the  control  of  the  Legisla- 
ture. If  we  are  to  make  a  constitutional  court  of  the  County  Court, 
let  us  prescribe  its  jurisdiction  in  the  Constitution  also,  so  that  it 
will  not  be  subject  to  change  or  modification  by  the  caprice  of  3. 
Legislature.  The  statute  now  permits  various  actions  to  be  brought 
in  the  County  Courts,  but,  owing  to  the  lack  of  equitable  power  in 
that  court,  parties  are  frequently  driven  out  of  court  by  the  answer 
in  the  action,  which  sometimes  raises  an  equitable  issue,  and  the 
plaintiff  may  be  obliged  to  back  out  of  the  County  Court  and  begin 
somewhere  else.  He  ought  not  to  be  subjected  to  that  technical 
difficulty.  Here  is  a  state  of  facts  which  sometimes  raises  a  techni- 
cal question,  clearly  inconsistent  and  illogical.  You  may  bring  an 
action  in  a  County  Court  to  recover  the  purchase  money  for  lands 
sold,  if  it  does  not  exceed  $2,000,  under  this  limitation  as  proposed, 
but  you  cannot  bring  an  action  in  a  County  Court  to  set  aside  the 
very  same  deed  on  account  of  fraud  or  mistake.  I  say,  a  court 
which  has  the  jurisdiction  of  an  action  to  recover  money,  ought  to 
have  jurisdiction  of  an  action  to  recover  the  land  itself.  Another 
inconsistency,  Mr.  Chairman,  still  more  marked,  I  want  to  point 
out.  There  are  thirty-three  counties  in  this  State  where  the  county 
judge  performs  the  duties  of  a  surrogate,  unless  a  separate  officer 
is  provided  for,  which  may  be  done  where  the  population  of  a 
county  exceeds  40,000.  Now,  as  a  matter  of  fact,  as  I  make  the 
computation,  there  are  thirty-three  counties  in  the  State  where 


1 174  REVISED  RECORD.  [Thursday, 

the  county  judge  is  also  the  surrogate.  Every  lawyer  knows  that 
there  is  no  class  of  business  presented  to  any  court  of  a  more  com- 
plicated character  than  that  which  comes  before  the  Surrogates' 
Courts.  They  have  to  pass  upon  questions  relating  to  the  probate 
of  wills,  the  transmissions  of  estates,  the  construction  and  the  valid- 
ity of  wills,  various  questions  relating  to  the  collateral  inheritance 
tax  law,  questions  of  powers,  questions  of  trusts,  questions  of  undue 
influence,  questions  of  fraud,  questions  of  mistake,  questions  of 
mental  capacity  and  a  variety  of  questions  that  arise  in  the  admin- 
istration of  the  duties  of  the  office  of  surrogate,  and  yet  your  Con- 
stitution contains  this  inconsistency  —  the  same  man  is  vested  by 
your  Constitution  with  power  to  take  charge  of  all  these  contro- 
versies; he  is  presumed  competent  to  pass  upon  all  those  intricate 
questions,  but  the  same  man,  when  acting  as  a  county  judge,  is 
deprived  of  the  power  to  pass  upon  questions  involving  equitable 
considerations.  Now,  I  insist  that  there  is  no  logic  in  that  situation. 
It  is  utterly  illogical  and  it  is  time  it  was  abolished  in  the  State  of 
New  York. 

Mr.  Cady  —  Mr.  Chairman,  I  trust  that  the  amendment  as  pro- 
posed to  this  article  will  not  prevail.  The  subject  was  given  very 
careful  consideration  by  the  committee 

Mr.  Lincoln  —  I  will  yield  the  floor  to  the  gentleman  from 
Columbia. 

Mr.  Cady  —  Oh,  I  beg  Mr.  Lincoln's  pardon.  I  supposed  that 
he  sat  down. 

Mr.  Lincoln  —  I  was  about  through.  What  I  propose,  Mr. 
Chairman,  I  have  already  indicated,  and  I  need  not  elaborate 
further.  It  is  substantially  to  raise  the  County  Court  to  the  posi- 
tion occupied  in  our  jurisprudence  by  the  old  Court  of  Common 
Pleas  and  to  put  our  County  Courts  upon  a  consistent  basis. 
Attempts  have  been  made,  as  I  suggest,  since  the  Constitution  of 
1846,  to  raise  the  character  of  the  court  and  to  increase  its  powers 
and  put  it  upon  a  basis  where  it  may  do  more  business.  That  is 
what  I  am  seeking  to  do.  Now,  I  think  I  have  voiced  the  senti- 
ments of  the  country  members  of  this  Convention,  members  of  the 
country  bar,  when  I  say  that  we  could  do  much  more  business,  and 
do  it  much  more  conveniently,  if  we  had  an  enlarged  jurisdiction 
of  the  County  Court.  Special  Terms  of  the  Supreme  Court  are 
not  convenient  for  us.  If  we  had  access  to  the  County  Courts  in 
these  various  classes  of  actions  that  I  have  suggested,  and  in  all 
other  actions  which  we  wanted  to  bring,  we  would  relieve  the  calen- 
dars of  the  Supreme  Court  and  be  able  to  do  our  business  much 


August  23.]  CONSTITUTIONAL  CONVENTION.  1175 

more  cheaply,   more   conveniently   and   more   rapidly,   and   those 
things  are  always  important  in  the  administration  of  justice. 

Mr.  Maybee  —  Mr.  Chairman,  I  desire  to  rise  to  a  point  of  order. 
I  have  understood  the  rulings  of  the  Chair  heretofore  to  be  that  a 
substitute  could  not  be  considered  until  amendments  had  been 
considered  to  the  original  proposition.  I  desire  to  offer  an 
amendment. 

Mr.  Lincoln  —  Mr.  Chairman,  I  supposed  that  my  provision 
would  be  deemed  an  amendment  to  the  entire  section,  although  a 
substitute  for  the  first  paragraph  of  the  section. 

The  Chairman  —  Does  the  gentleman  (Mr.  Maybee)  desire  to 
offer  an  amendment  to  Mr.  Lincoln's  amendment? 

Mr.  Maybee  —  I  desire  to  offer  an  amendment  to  the  original 
proposition.  Mr.  Lincoln  stated  that  he  offered  his  proposition  as 
a  substitute. 

Mr.  Lincoln  —  For  a  part  of  the  section,  the  first  section. 

The  Chairman  —  For  the  first  paragraph. 

The  Secretary  read  the  amendment  proposed  by  Mr.  Maybee  in 
the  language  following: 

"  Amend  section  14  by  substituting  "  three  thousand  dollars  "  for 
"two  thousand  dollars,"  in  lines  5  and  9,  page  n. 

The  Chairman  —  The  amendment  is  not  in  order,  unless  you 
make  it  as  an  amendment  to  Mr.  Lincoln's  substitute.  It  will  be 
so  received. 

Mr.  Cady  —  Mr.  Chairman,  I  was  about  to  say  when  I  observed 
that  I  had  interrupted  the  gentleman  (Mr.  Lincoln),  that  I  trust 
that  this  amendment  will  not  prevail.  Very  careful  attention  was 
given  to  the  amendment  in  the  Judiciary  Committee,  and  after 
careful  deliberation  it  was  unanimously  concluded  that  no  such 
change  ought  to  be  made  in  the  system  of  County  Courts.  I  think 
that  the  scope  of  the  report  of  the  Judiciary  Committee  is  suffi- 
ciently well  understood  by  delegates  to  lead  them  to  the  conclusion 
that  the  purpose  of  the  committee  was,  as  far  as  possible,  to  estab- 
lish and  maintain  in  the  State  one  great  court  of  original  jurisdiction 
and  powers,  entirely  a  Supreme  Court,  giving  at  the  same  time  as 
many  local  courts  of  qualified  and  limited  jurisdiction  as  might  be 
necessary  for  the  varied  local  wants  of  the  people.  Now,  so  far  as 
the  courts  of  the  cities  are  concerned,  we  have  provided  for  the 
abolition  of  four,  two  in  the  city  of  New  York,  one  in  the  city  of 
Brooklyn  and  another  in  the  city  of  Buffalo.  It  would  hardly  seem 
to  be  consistent  with  a  plan  for  the  abolition  of  those  local  courts 


1176  REVISED  RECORD.  [Thursday, 

that  in  the  same  breath  we  should  create  in  all  the  other  counties 
of  the  State  courts  having  original  jurisdiction  equivalent  to  that 
of  the  Supreme  Court,  and  yet  local  in  their  character,  and  to  a 
certain  extent  local  in  their  jurisdiction.  I  believe  that  the  people 
are  sufficiently  well  satisfied  with  the  present  powers  of  the  County 
Courts  and  desire  no  radical  change  in  them.  Within  certain 
limited  and  circumscribed  spheres  they  perform  necessary  and 
important  duties,  duties  which  could  not  well  be  performed  by  the 
justices  of  the  Supreme  Court  or  by  that  court  itself,  and  which  may 
well  be  performed  by  courts  of  the  character  of  a  County  Court.. 
We  have  proposed  an  increase  of  their  jurisdiction  in  money  actions 
to  $2,000,  and  it  would  seem  to  the  Judiciary  Committee  that  that 
is  a  sufficient  increase  for  all  the  purposes  of  the  same. 

Mr.  Woodward  —  Mr.  Chairman,  I  wish  to  speak  upon  this 
question.  Unfortunately,  I  do  not  practice  law  where  gentlemen 
have  the  advantage  of  the  increased  number  of  judges  proposed,  as 
in  New  York  and  Brooklyn.  We  have  no  justices  of  the  Supreme 
Court  residing  in  our  county.  If  we  wish  to  apply  to  the  Supreme 
Court  for  any  purpose,  we  have  to  go  to  Buffalo  or  Rochester, 
and  we  very  seldom  have  Special  Terms  in  our.  county.  At  the 
time  the  Circuit  Court  is  held,  we  usually  have  a  little  Special  Term 
business  done,  and  that  is  all  the  Special  Terms  we  have,  and  it  is 
very  seldom  that  we  can  get  a  case  involving  equity  principles  tried 
before  the  courts,  for  the  reason  that  the  Supreme  Court  is  so  much 
engaged  elsewhere  that  it  cannot  stop  to  hear  our  cases.  Buffalo 
or  Rochester  or  some  other  place  has  larger  and  more  important 
cases,  perhaps.  It  is,  therefore,  very  convenient  for  us  frequently 
to  commence  actions  in  the  County  Court,  and  when  we  can  do  that 
it  saves  time,  because  that  court  is  not  so  much  occupied  but  that 
it  can  hear  cases  promptly.  I  will  give  you  an  instance  of  the 
operation  of  the  law  as  it  stands  now,  the  County  Court  having  no 
jurisdiction.  If  the  Second  Division  of  the  Court  of  Appeals  has 
decided  correctly,  a  County  Court  cannot  even  correct  an  erroneous 
word  in  a  mortgage.  The  statute  gives  it  power  to  foreclose  a 
mortgage.  A  mortgage  was  put  into  my  hands  to  foreclose,  where 
there  had  been  a  mistake  of  a  single  word.  Instead  of  the  whole 
premises  an  undivided  half  was  inserted.  The  mortgage  was  drawn 
by  the  mortgagor,  and  he  set  a  boy  to  drawing  it.  It  was  put 
upon  record,  and  the  record  paid  for  according  to  agreement,  and 
the  mortgagee  did  not  see  the  mortgage  until  it  became  due,  and 
he  had  occasion  to  foreclose.  It  was  put  in  my  hands,  and  I  was 
told  to  foreclose  it  in  the  cheapest  manner  I  could.  For  that  rea- 
son I  thought  best  to  foreclose  in  the  County  Court,  as  a  mortgage 


August  2.3.]  CONSTITUTIONAL  CONVENTION.  1177 

could  be  foreclosed  there,  but  the  question  whether  I  could  have 
that  amendment  in  the  County  Court  arose.  I  went  to  the  judge 
and  he  examined  the  statutes  and  thought  it  could  be  amended  there 
and  the  foreclosure  made.  I  examined  the  statutes  and  I  thought 
so,  too.  I  submitted  the  question  to  some  other  legal  lights,  and 
they  all  thought  so.  Unfortunately,  I  commenced  the  foreclosure 
of  that  mortgage  in  the  County  Court,  and  the  county  judge  decided 
that  we  could  amend,  and  the  amendment  was  made  and  the  whole 
mortgage  foreclosed.  There  was  no  dispute  but  that  it  was  a  mere 
oversight  of  the  boy  that  drew  the  mortgage ;  there  was  no  dispute 
but  that  the  mortgage  covered  the  whole'  premises;  no  question 
about  that  made  by  the  defendant  or  any  one  else.  The  proof  all 
showed  that  the  contract  was  that  it  should  cover  the  whole  prem- 
ises, and  that  there  was  a  mere  mistake  of  a  boy,  and  yet  the  County 
Court  had  not  jurisdiction  to  foreclose  that  mortgage,  so  the 
Supreme  Court,  at  General  Term,  decided.  One  of  the  judges, 
however,  wrote  a  dissenting  opinion.  I  thought  it  was  the  ablest 
opinion  of  the  two.  He  held  that  the  County  Court  had  the  juris- 
diction, and  I  found  some  other  judges  who  thought  that  it  was 
erroneously  decided,  as  well  as  a  good  many  lawyers.  I  chose  to 
take  it  to  the  Court  of  Appeals.  Unfortunately,  I  happened  to 
strike  the  Second  Division  of  the  court.  If  I  had  gone  to  the  First 
Division,  I  think  I  might,  perhaps,  have  got  a  different  decision. 
They  held  that  the  County  Court  had  not  equity  powers,  and,  there- 
fore, could  not  correct.  I  claimed  that  the  justices  of  the  peace 
could  correct  a  mistake  in  a  case  that  was  before  them,  but  they 
did  not  see  fit  to  hold  with  me,  and,  consequently,  I  had  to  go  back 
and  commence  a  foreclosure  in  the  Supreme  Court.  I  did  so,  and 
finally  sold  the  whole  premises,  but  it  cost  a  good  deal  to  do  it. 

Mr.  C.  H.  Truax  —  Mr.  Chairman,  I  rise  to  a  point  of  order. 
One  of  the  rules  says  that  no  member  of  the  Convention  shall  get 
between  a  speaker  and  the  Chair. 

President  Choate  —  Was  there  anything  left  for  the  client? 

Mr.  Woodward  —  There  wasn't  much  left  for  the  client  when  we 
got  through.  (Laughter.)  Now,  I  would  give  the  County  Court 
some  jurisdiction;  give  it  equity  jurisdiction,  as  well  as  legal 
jurisdiction.  Do  not  our  county  judges  know  enough  to  dispense 
equity,  as  well  as  law?  If  they  do  not,  they  ought  not  to  be  on  the 
bench.  We  should  elect  better  men.  But  they  do;  you  will  see 
that  they  do  from  the  fact  that  our  county  judges  are  taken  as 
Supreme  Court  judges;  they  are  selected  from  the  County  Courts 
in  many  instances;  they  are  thought  by  the  people  sufficiently  com- 


1178  REVISED  RECORD.  [Thursday, 

petent  to  go  upon  the  Supreme  Court  bench  after  a  little  practice 
in  the  County  Courts;  and  why  should  they  not?  I,  therefore, 
favor  this  proposal  in  behalf  of  the  convenience  of  clients.  I  would 
have  gone  into  the  Supreme  Court  with  this  case,  but  I  was 
requested,  for  the  benefit  of  the  defendant,  to  foreclose  the  mort- 
gage as  cheaply  as  I  could,  right  in  our  own  county,  to  save  going 
to  Buffalo  or  Rochester.  But  the  County  Court  had  not  jurisdic- 
tion in  a  case  where  there  was  more  than  $300  or  $400  at  stake. 
I  could  not  have  got  to  the  Court  of  Appeals,  only  as  a  I  got  per- 
mission from  the  General  Term  to  go  there.  There  being  a  dissent- 
ing opinion,  they  allowed  me  to  go  there.  If  the  Second  Division 
had  correctly  decided  it,  I  think  they  would  have  held  that  the 
County  Court  had  the  power.  But  I  have  not  any  doubt  to-day 
but  that  we  have  the  power.  I  do  not  think  it  requires  any  equity 
to  correct  a  mere  verbal  mistake;  but,  lest  it  should  be  held  by  the 
courts,  or  the  Second  Division  of  the  court,  that  they  have  not  such 
power,  I  would  put  in  a  clause  in  this  judiciary  article  giving  the 
County  Courts  some  jurisdiction  in  equity.  If  you  do  not  give 
them  jurisdiction  for  more  than  a  $1,000  in  equity,  give  them  juris- 
diction in  equity.  I  have  tried,  as  referee,  a  great  many  causes, 
where  equity  was,  perhaps,  one  of  the  main  things  in  the  case.  I 
never  found  any  great  difficulty  in  deciding  the  equities  of  a  case. 
I  have  had  a  great  many  cases  involving  equities  in  the  courts. 
I  have  never  found  any  difficulty  in  having  the  courts  understand 
the  equity  of  the  case. 

Mr.  Hamlin  —  Mr.  Chairman,  I  have  listened  to  the  remarks 
of  gentlemen  in  regard  to  this  proposed  amendment,  and  I  heard, 
with  interest,  the  remarks  of  Mr.  Lincoln  upon  the  historic  past 
of  the  County  Court;  but,  sir,  I  believe  this  amendment,  as  pro- 
posed by  the  committee,  should  remain  as  it  is.  The  County  Courts 
of  our  State  have  served  a  very  good  purpose  for  a  great  many 
years,  and  certainly  in  my  locality  there  is  no  desire,  and  there 
is  no  object  in  the  amendment  proposed  by  Mr.  Lincoln.  It  is 
very  difficult  in  our  local  County  Courts  to  force  any  litigation  of 
an  original  character  into  them.  It  is  rarely  that  we  use  them  at  all. 
Occasionally  an  action  for  foreclosure  is  allowed,  or  partition  is 
brought  in  the  County  Court;  but,  sir,  it  is  very  exceptional  that 
there  is  any  demand  upon  the  County  Courts  for  any  adjudications 
of  the  character  proposed  by  this  amendment.  It  seems  to  me  desir- 
able that  there  should  be  one  court  of  original  equity  jurisdiction 
in  this  State,  and  I  do  not  believe,  sir,  paying  due  respect  to  the 
distinguished  county  judges  who  are  in  this  court,  that  it  would  be, 
on  the  whole,  desirable  that  there  should  be  broad  equity  powers 


August  23.]  CONSTITUTIONAL  CONVENTION.  1179 

placed  in  the  hands  of  the  County  Courts  in  this  State.  Now,  as 
I  say,  there  is  no  demand  for  this  particular  amendment,  as  it  seems 
to  me.  It  would  be,  I  believe,  a  step  in  the  wrong  direction, 
and  I  earnestly  hope  that  this  Convention  will  stand  by  the  report 
of  its  committee  in  this  case.  As  far  as  my  own  locality  is  con- 
cerned, I  should  be  perfectly  willing  that  the  original  amount  of 
$1,000  should  remain.  For  some  reason,  either  because  of  the  local 
character  of  the  judge,  or  because  of  his  character  as  an  officer,  it  is 
very  difficult  to  force  into  County  Courts  actions  of  an  original 
character.  Therefore,  I  say  that  I  trust,  there  being  no  necessity 
for  this  amendment,  that  the  report  of  the  committee  will  be 
confirmed. 

The  Chairman  again  read  Mr.  Maybee's  amendment,  and  put 
the  question  on  its  adoption,  which  was  determined  in  the 
negative. 

The  Chairman  then  put  the  question  on  the  adoption  of  the 
amendment  proposed  by  Mr.  Lincoln,  and  it  was  determined  in 
the  negative,  by  a  rising  vote,  49  to  62. 

Mr.  Veeder  —  I  offer  the  following  amendment: 

The  Secretary  read  the  amendment  offered  by  Mr.  Veeder  in 
the  language  following: 

Amend  section  14,  page  n,  line  12,  after  the  word  "county,"  to 
"  counties."  And  after  the  words  "  New  York,"  same  line,  insert 
the  words  "and  Kings."  The  same  amendment  in  line  15,  page  n, 
section  14. 

Mr.  Veeder  —  It  will  be  observed,  Mr.  Chairman,  that  we  ask 
simply  in  the  county  of  Kings  the  same  exception  as  by  this  para- 
graph of  this  section  is  given  to  the  county  of  New  York.  Our 
Court  of  Sessions,  as  at  present  constituted,  has  criminal  jurisdic- 
tion, even  in  homicide  cases,  and  the  greater  part  of  the  criminal 
business  is  conducted  there.  Our  Court  of  Oyer  and  Terminer  is 
a  very  infrequent  court,  and  I  am  advised  by  those  who  are  more 
familiar  with  the  subject  than  I  am  that  it  is  very  essential  that  the 
integrity  of  our  Court  of  Sessions  should  be  preserved,  and  not 
restricted,  as  provided  by  this  section.  I  ask  the  favor  of  the  Con- 
vention that  the  county  of  Kings  be  excepted  the  same  as  is  the 
county  of  New  York. 

Mr.  Jesse  Johnson  —  Mr.  Chairman,  I  am  not  in  favor  of  the 
proposed  amendment.  The  reason  for  abolishing  the  Court  of 
General  Sessions  has  been  fully  stated.  The  reason  which  exists 
for  abolishing  the  Court  of  General  Sessions  is  the  same  reason 
which  has  influenced  the  Convention  in  abolishing  the  Court  of 


Il8o  REVISED  RECORD.  [Thursday, 

Oyer  and  Terminer;  it  is  to  abolish  the  anachronism,  the  absurdity 
of  allowing  the  same  judge,  in  the  same  place,  on  the  same  day,  to 
sit  practically  in  the  same  business,  in  two  different  capital  cities. 
It  is  a  wise,  a  just  provision,  which  has  met  the  favor  of  the  Conven- 
tion. Now,  sir,  we  are  not  here,  after  adopting  principles,  to  put 
patches  on  our  letter  of  adoption,  to  make  our  Constitution  a  matter 
of  patch  work,  and  seams,  and  irregularity.  And  if  there  is  to  be 
anything  of  that  kind  done,  I  desire  that  Kings  county  shall  not  be 
the  county  to  set  the  example.  I  was  opposed,  sir,  as  I  have  said 
here,  to  the  proposition  that  would  except  Kings  county  as  to  the 
term  of  the  surrogate.  Let  the  terms  be  uniform  throughout  the 
State,  and  let  it.  be  uniform  that  the  Court  of  General  Sessions  is 
abolished,  except  where  good  cause  exists  to  the  contrary.  The 
reason  which  exists  for  excepting  New  York  is,  that  there  is  no 
County  Court  in  the  city  and  county  of  New  York.  The  judge  who 
sits  as  the  judge  of  Sessions  there  occupies  no  dual  station.  To 
abolish  the  Court  of  Sessions  there  would  be  to  abolish  the  court; 
to  abolish  the  Court  of  Sessions  here  is  merely  to  abolish  the  form, 
the  procedure  of  side  justices  and  reconvening;  therefore,  sir,  I 
hope  that  Kings  county  will  be  made  no  exception  to  the  general 
rule,  and  that  the  amendment  will  not  prevail. 

Mr.  Dickey  —  I  would  like,  Mr.  Chairman,  to  ask  the  mover  of 
the  proposition,  Mr.  Veeder,  whether  his  amendment  now  contem- 
plates the  retaining  of  the  justices  of  Sessions  in  Kings  county? 

Mr.  Veeder  —  Not  at  all. 

Mr.  Towns  —  Mr.  Chairman,  I  am  not,  like  Mr.  Johnson,  a  mem- 
ber of  that  committee  of  perfection  known  as  the  Judiciary  Com- 
mittee, whose  pride  of  opinion  seems  to  have  convinced  them  that 
they  ought  to  stand  here  against  patches,  even  when  those  patches 
might  add  to  their  beauty.  There  is  just  as  much  reason,  Mr. 
Chairman,  for  the  existence  of  the  Court  of  Sessions  in  Kings 
county  as  there  is  for  the  existence  of  the  Court  of  Sessions  in  New 
York  county.  But  it  seems  to  me  that  Kings  county  will  take  its 
usual  position,  that  of  being  left,  when  the  deals  and  the  dispensa- 
tion of  favors  are  going  around  in  any  body  of  this  State;  and  it  is 
generally  the  case  that  our  worthy  sons,  or  unworthy  sons,  rise  up 
to  put  her  in  that  abject  position.  The  Court  of  Sessions  in  Kings 
county  has  unlimited  jurisdiction.  It  is  one  of  the  most  active 
courts  in  this  State.  It  tries  criminals  accused  of  any  crime,  in  any 
degree;  and  to  take  that  jurisdiction  away,  or  to  change  it  in  any 
way,  would  be  to  burden  the  Supreme  Court,  which  I  understand 
you  are  now  trying  to  relieve  of  its  burdens,  with  the  trial  of  crimi- 


August  23.]  CONSTITUTIONAL  CONVENTION.  1181 

nal  cases  and  block  up  the  civil  calendar.  I  think  that  this  excep- 
tion is  a  very  wise  exception  and  that  it  should  prevail. 

Mr.  Jacobs  —  Mr.  Chairman,  perhaps  I  am  one  of  the  unworthy 
sons  of  Brooklyn  to  which  the  last  speaker  has  referred.  I  think 
if  he  would  occasionally  take  the  trouble  to  read  an  amendment, 
before  commenting  upon  it,  it  would  save  him  and  the  Convention 
considerable  annoyance.  We  do  not  propose  to  abolish  any  of  the 
criminal  jurisdiction  now  existing  in  the  Court  of  Sessions.  We 
simply  propose  that  the  county  judge  who  presides  at  the  Court  of 
Sessions  shall  continue  to  dispatch  criminals  to  Sing  Sing  and  the 
penitentiary  as  a  county  judge,  without  the  assistance  of  any  one 
else.  In  this  very  amendment  it  is  declared  that  all  the  powers  now 
vested  in  the  Court  of  Sessions  shall  be  passed  over  and  vested  in 
the  County  Court,  and  the  county  judge  will  be  the  same  criminal 
magistrate,  with  the  same  power;  and  I  think  to  the  eminent  satis- 
faction of  the  good  citizens  of  Kings  county,  whatever  it  may  be  to 
the  criminal.  Therefore,  I  hope,  sir,  that  Kings  county  will  not  be 
made  an  exception;  that  we  will  be  left  in  harmony  with  the  judicial 
system  which  this  committee  has  wisely  marked  out,  and  that  we 
will  simply  abolish  the  hollow  form  of  calling  up  two  side  justices 
who  really  do  not  do  anything,  except  to  draw  their  salary.  That 
will  leave  the  county  judge  untrammeled,  with  any  empty  barren 
forms,  and  let  the  business  go  right  straight  along,  and  make  an 
end  of  it.  And  if  to  support  that  system  is  unworthy  of  a  repre- 
sentative of  Kings  county,  I  hope  I  will  always  be  found  among 
unworthy  men. 

Mr.  Cochran  —  Mr.  Chairman,  I  sincerely  trust,  sir,  that  this 
amendment  which  has  been  proposed  by  Mr.  Veeder  will  prevail. 
I  think,  sir,  that  it  is  misunderstood,  also.  The  object  is  not  to 
retain  the  present  side  justices  in  the  Court  of  Sessions,  for  they 
are  by  this  amendment  abolished.  We  do  desire,  however,  to  retain 
a  distinctively  criminal  court.  We  do  not  feel,  that  this  merging 
of  the  civil  and  and  the  criminal  business  together  into  a  County 
Court  is  going  to  be  a  good  thing  for  the  county  or  for  the  County 
Court,  as  your  suitors  are  not  going  into  the  County  Court  to  have 
their  cases  tried,  where  the  great  mass  of  the  criminal  business  is  at 
the  same  time  being  tried.  The  amount  of  criminal  business  that 
is  now  done  by  the  Court  of  Sessions  in  Kings  county,  I  think,  is 
not  realized  by  this  Convention;  and  if  you  take  that  nisi  business 
and  put  it  in  with  the  civil  business  the  result  will  be  that  the  civil 
business  will  be  eliminated  entirely  from  the  County  Court  and  put 
back  into  the  Supreme  Court,  and  we  shall  have  afforded  the  court 
no  relief  at  all.  We  do  not  desire,  by  our  proposed  amendment  to 


Il82  REVISED  RECORD.  [Thursday, 

this  constitutional  amendment,  to  retain  any  judges  further  than 
they  do.  We  do  not  by  our  amendment  contemplate  any  additional 
expenditures,  and,  in  fact,  every  decrease  in  expense  which  is  con- 
templated by  the  committee's  report  is  included  within  our  pro- 
posed amendment;  and  I  submit,  sir,  that  we  should  have  in  Kings  a 
distinctively  criminal  court,  and  I  trust  that  the  amendment  of  Mr. 
Veeder  will  prevail. 

Mr.  Powell  —  Mr.  Chairman,  like  the  gentleman  from  Kings, 
Mr.  Johnson,  I  hail  from  the  county  of  Kings.  Unlike  the  gentle- 
man from  Kings,  Mr.  Johnson,  I  am  not  a  member  of  the  Judiciary 
Committee.  Nor  have  I  hesitated  on  one  or  two  occasions  to  lay 
the  hand  of  criticism  on  the  ark  of  the  covenant  which  that  body 
bears  in  this  Convention.  But  the  purpose  of  this  proposed  amend- 
ment, to  except  the  county  of  Kings  from  the  provisions  of  the 
article  introduced  by  the  Judiciary  Committee,  is  simply  absurd; 
and,  if  I  am  rightly  informed,  and  I  think  I  am,  and  I  do  not  hesi- 
tate to  proclaim  it  to  this  Convention,  the  sole  purpose  of  this  pro- 
posed amendment  is  to  keep  one  man  in  office  who  will  be  thrown 
out  of  office  if  the  amendment  proposed  does  not  pass. 

Mr.  Cochran  —  Mr.  Chairman,  may  I  ask  the  gentleman  a 
question? 

Mr.  Powell  —  And  I  ask 

Mr.  Cochran  —  It  certainly  is  an  error. 

Mr.  Powell  —  It  has  been  suggested  by  the  gentleman  from 
Kings  (Mr.  Cochran)  that  it  would  be  a  most  unfortunate  thing  if 
in  our  County  Court  we  were  compelled  to  have  our  criminal  busi- 
ness and  our  civil  business  mixed  together.  I  should  like  to  ask 
the  gentleman  if  he  has  ever  been  into  our  County  Court  at  the 
present  time,  when  the  same  judge,  sitting  on  the  same  seat,  was 
one  minute  engaged  in  the  business  of  the  Court  of  Sessions  and 
the  next  minute  engaged  in  the  business  of  the  County  Court,  flying 
like  a  shuttlecock  from  one  court  to  the  other,  so  that  one  minute 
you  were  in  the  Court  of  Sessions  and  the  next  minute  in  the  County 
Court,  so  that  you  were  kept  constantly  vibrating  between  the  two, 
and  it  was  only  with  the  utmost  difficulty  that  a  person  in  court 
could  tell  in  which  court  he  was  at  any  particular  minute;  going 
in  there  to  argue  motions  before  the  court,  having  to  wait  until 
some  one  was  sentenced  to  State's  prison  or  to  the  pentientiary,  a 
wonderful  conglomeration  of  legal  business,  everything  mixed  up 
with  everything  else,  so  that  no  one  but  the  judge  knew  where  we 
were,  and  sometimes  there  was  doubt  as  to  whether  the  judge  him- 
self knew  exactly  which  court  he  was  holding  at  any  particular 


August  23.]  CONSTITUTIONAL  CONVENTION.  1183 

minute  of  time.  Now,  it  has  been  suggested  by  one  of  the  gentle- 
men from  Kings,  that  there  is  just  as  much  need  in  Kings  county 
for  the  Court  of  Sessions  as  there  is  in  the  city  and  county  of  New 
York.  That  statement,  gentlemen,  is  an  imputation  upon  the 
county  of  Kings  and  upon  the  city  of  Brooklyn.  We  are  proud  of 
the  fact  that  in  the  city  of  Brooklyn  there  is  very  little  crime  as 
compared  with  the  great  city  of  New  York.  We  are  a  less  criminal 
city;  we  are  a  more  moral  city;  we  are  a  Republican  city  on  the 
other  side  of  the  East  river.  We  always  like  to  recall  what  is  pleas- 
ant, and  that  is  a  pleasant  fact  to  those  of  us  who  are  from  Kings 
county.  I  think  it  would  be  a  most  serious  mistake  to  except  the 
county  of  Kings  from  the  proposed  amendment  as  introduced  by 
the  Judiciary  Committee;  and  whatever  may  be  the  particular  view, 
and  whatever  the  particular  motives  which  conduce  to  those  par- 
ticular views  on  the  part  of  the  Democratic  members  from  the 
county  of  Kings,  every  Republican  member  of  this  Convention 
from  that  county  is  opposed,  first,  last  and  all  the  time,  to  the 
adoption  of  the  amendment  which  has  been  proposed  by  the  gentle- 
man from  Kings,  Mr.  Veeder. 

Mr.  Root  —  Mr.  Chairman,  the  plain  fact  about  this  situation  is, 
that  the  county  of  Kings  stands  in  exactly  the  same  relation  to  this 
section  that  every  other  county  in  the  State  occupies.  It  has  a 
county  judge;  the  Legislature  has  proposed,  and  the  people  will 
vote  this  fall  upon,  and  amendment  to  make  another  county  judge. 
We  adopt  that  proposed  amendment  in  this  article,  and  ask  the 
people  to  approve,  making  another  county  judge.  The  county 
judge  in  that  county  sits  in  the  Court  of  Sessions,  and  the  Court  of 
Sessions  has  no  separate  existence  except  by  virtue  of  the  side 
judges.  In  every  respect  the  situation  is  precisely  what  it  is  in  all 
the  other  counties  of  the  State,  except  the  county  of  New  York; 
and  in  the  county  of  New  York  there  is  no  County  Court  and  no 
county  judge,  so  that  we  cannot  apply  the  amendment  to  it.  Now,  sir, 
there  is  just  as  much  reason  for  excepting  every  other  county  of  the 
State  as  there  is  for  excepting  the  county  of  Kings;  and  while  it  is 
very  disagreeable,  Mr.  Chairman,  to  resist  the  requests  and  impor- 
tunities of  any  of  the  gentlemen  whom  we  like  personally,  and 
whose  personal  interests  we  should  be  glad  to  promote,  to  have 
the  existing  state  of  affairs  continued  so  that  they  may  remain  in 
office,  we  cannot  make  a  Constitution  in  that  way;  and  having 
proposed  a  system  for  the  entire  State,  we  cannot  do  anything  in 
the  way  of  making  a  Constitution  that  is  worth  having,  if  we  make 
exceptions  for  every  good  fellow  or  kind  friend  who  wants  to  be 
excepted  for  the  benefit  of  his  personal  interests.  (Applause.) 


U84  REVISED  RECORD.  [Thursday, 

Therefore,  Mr.  Chairman,  I  am  delighted  that  the  gentleman  from 
Brooklyn,  Mr.  Powell,  has  concluded  to  climb  into  the  ark  and  ride 
with  the  son  of  Jesse,  and  I  am  willing  to  go  along  with  him,  in 
opposing  this  amendment.  (Laughter.) 

Mr.  Veeder  —  I  submit,  Mr.  Chairman,  with  all  due  respect  to 
the  gentleman,  the  chairman  of  the  Judiciary  Committee,  that  he 
makes  a  mistake  when  he  says  there  is  no  county  judge  in  the  city 
of  New  York.  It  is  especially  recognized  in  case  of  disability  of  the 
surrogate  there  that  the  chief  judge  of  the  County  Court,  the  Court 
of  Common  Pleas,  is  the  county  judge.  Now,  sir,  I  cannot  under- 
stand the  trouble  my  friend  Mr.  Powell  has  in  having  so  much  con- 
fusion when  he  goes  into  the  County  Court.  It  is  as  simple  as 
ABC,  the  proceedings  in  the  County  Court,  and  if  there  is  any 
trouble  there  at  all  in  his  case,  it  must  be  because  of  the  youth  of 
his  experience  and  not  the  condition  of  the  court.  Now,  sir,  we 
do  not  desire  to  retain  the  side  justices.  But  there  has  been  con- 
ferred upon  the  Court  of  Sessions  of  the  county  of  Kings,  and  the 
jurisdiction  exists,  to  try  all  classes  of  criminal  cases ;  and,  sir,  if  this 
court  is  abolished,  and  no  provision  at  all  made,  I  submit  it  will 
lead  to  endless  confusion  and  mistake.  As  has  been  remarked  by 
my  colleague,  Mr.  Towns,  the  civil  business  of  our  district  occupies 
the  whole  time  of  our  Supreme  Court  justices,  and  there  should  be 
left  to  the  county  of  Kings  its  County  Court  with  all  its  criminal 
jurisdiction.  I  deprecate  very  greatly  indeed  the  course  that  has 
rendered  it  necessary  for  this  great  victorious  Republican  party, 
who  claim  to  be  able  to  carry  this  State,  who  claim  to  be  able  to 
carry  all  the  counties  of  the  State,  to  read  politics  in  a  proposition 
of  this  kind.  Let  us  try  to  keep  the  judiciary  out  of  politics  if  we 
cannot  do  anything  else. 

Mr.  Cochran  —  Mr.  Chairman,  I  would  not  intrude  again  upon 
this  Convention  if  it  were  not  that  a  gentleman  on  this  floor  has 
seen  fit  to  attribute  a  motive  to  our  favoring  this  amendment.  I 
desire  to  sa)^,  sir,  that  we  have  no  such  motive  in  view;  and  if  the 
gentleman  would  study  the  amendment  more  carefully  he  would 
see  that  every  clerk  that  is  now  in  the  Court  of  Sessions  would  be 
merely  transferred  to  the  county  clerk's  office,  and  there  would 
be  no  abolishing  of  clerks  or  increasing  of  them;  and  I  regret  with 
my  colleague  from  Kings,  Mr.  Veeder,  that  he  should  find  it  neces- 
sary to  oppose  an  amendment  which  he  knows  to  be  so  just;  that 
he  would  ask  for  a  division  of  this  House  on  party  lines:  and  I  trust, 
sir,  that  the  gentlemen  of  his  own  party  will  rise  up  against  him  and 
vote  him  down. 


August  23.]  CONSTITUTIONAL  CONVENTION.  1185 

Mr.  Foote  —  Mr.  Chairman,  the  gentlemen  advocating  this 
amendment  say  they  do  not  desire  to  retain  the  side  justices  of  the 
Court  of  Sessions  in  Kings  county.  Now  the  necessary  effect  of 
the  amendment  proposed  is  to  retain  the  side  justices.  The  article 
as  proposed  by  the  committee  provides  for  abolishing  the  Court 
of  Sessions  and  conferring  all  its  jurisdictions  upon  the  County 
Courts.  In  no  other  part  of  this  article  is  any  provision  made  for 
abolishing  the  side  justices.  They  are  abolished  by  virtue  of  the 
clause  which  abolishes  the  Court  of  Sessions.  Now,  it  appears 
that  the  criminal  jurisdiction  of  the  Courts  of  Sessions  in  Kings 
county  would  be  somewhat  interfered  with  by  the  adoption  of  this 
article.  Gentlemen  have  seemed  to  fail  to  observe  that  all  the  juris- 
diction of  the  Court  of  Sessions  is  vested  in  the  County  Courts. 
Hence  that  jurisdiction  would  still  be  retained  as  it  exists  to-day. 

Mr.  Dickey  —  I  call  for  another  reading  of  the  proposed 
amendment. 

The  Secretary  read  again  the  amendment  offered  by  Mr.  Veeder. 

The  Chairman  put  the  question  on  the  adoption  of  the  amend- 
ment offered  by  Mr.  Veeder,  and  it  was  determined  in  the  negative. 

Mr.  H.  A.  Clark  —  Mr.  Chairman,  I  desire  to  offer  the  following1 
amendment. 

The  Secretary  read  the  amendment  offered  by  Mr.  Clark  in  the 
language  following:  Amend  section  14,  line  20,  page  n,  by  adding 
after  the  words  "  county  treasurer,"  the  words  "  which  salary  shall 
not  be  increased  or  diminished  during  his  official  term." 

Mr.  H.  A.  Clark  —  Mr.  Chairman,  I  wish  to  change  that 
amendment. 

The  Chairman  —  The  Chair  will  permit  the  gentleman  to  with- 
draw his  amendment  if  there  are  no  objections. 

Mr.  Clark  —  The  amendment  is  withdrawn  at  the  present  time. 

Mr.  Gibney  —  Mr.  Chairman,  I  desire  to  offer  the  following 
amendment. 

The  Secretary  read  the  amendment  offered  by  Mr.  Gibney  in  the 
language  following:  Amend  section  14,  at  lines  5  and  9,  by  strik- 
ing out  "  two  thousand  dollars,"  and  inserting  instead  "  ten  thou- 
sand dollars." 

Mr.  Gibney  —  Mr.  Chairman,  I  think  if  there  is  one  method  of 

facilitating  the  trial  of  causes  it  would  be  by  the  $2.000  limitation 

on  the  County  Courts;  and  I  think  if  the  Judiciary  Committee  had 

considered  this  subject  sufficiently  to  give  relief  to  litigants  in  the 

75 


Il86  REVISED  RECORD.  [Thursday, 

courts  below,  they  could  not  do  a  better  thing  than  to  eliminate 
in  fact  this  $2,000  altogether,  and  leave  any  person  who  resides  in  a 
county  liable  to  be  sued  for  any  amount,  the  same  as  in  the  Supreme 
Court.  The  Convention,  Mr.  Chairman,  will  understand  that  now 
no  person  can  be  sued  in  the  County  Court  unless  he  is  a  resident 
of  that  county.  I  think,  sir,  that  is  a  sufficient  limitation  already. 
I  do  not  ask  now  anything  more  than  an  increase  in  the  amount 
for  which  a  person  may  be  sued  in  a  county,  namely  $10,000.  And 
I  believe,  Mr.  Chairman  and  gentlemen,  that  if  this  provision  is 
adopted  it  will  do  more  to  relieve  the  Supreme  Court  of  business 
than  almost  any  other  provision  that  has  been  spoken  of  in  this 
Convention.  In  the  county  of  Westchester  where  I  reside  with 
a  population  of  over  100,000,  we  have  a  County  Court.  We  have 
a  calendar  in  the  Supreme  Court  four  times  a  year,  averaging  not 
less  than  120  and  130  cases.  The  Supreme  Court  sits  but  one  week, 
rarely  two  weeks,  at  any  session,  and  there  are,  no  doubt,  ten  or 
twelve  cases  on  that  calendar  which  could  be  tried,  and  would  be 
tried,  in  the  County  Court  by  the  lawyers  except  for  this  limit  in  the 
jurisdiction;  and  the  reason  of  it  is  that  lawyers  would  gladly  bring 
their  cases  in  the  County  Court  if  this  money  amount  was  a  little 
more.  We  know,  Mr.  Chairman,  that  lawyers  are  in  the  habit  of, 
and  always  wish,  probably,  in  their  complaints  to  ask  for  a  large 
sum  of  money,  notwithstanding  that  juries  may  not  give  them  one- 
third  or  one-half  of  what  they  ask.  If  this  limitation  were  removed 
I  am  sure  that  there  could  be  a  great  many  causes  brought  in  a 
County  Court  that  are  not  brought  there  now  without  asking 
this  Convention  to  increase  what  is  called  its  equity  jurisdiction. 
Therefore,  I  do  not  think  that  this  Judiciary  Committee  or  this 
Convention  would  make  any  mistake  in  granting  this  relief,  namely, 
to  allow  a  suitor  there  to  sue  for  the  sum  of  $10,000,  or  not  to  exceed 
that,  instead  of  $2,000. 

The  Chairman  put  the  question  on  the  adoption  of  the  amend- 
ment offered  by  Mr.  Gibney,  and  it  was  determined  in  the  negative. 

The  Chairman  —  Are  there  any  further  amendments  to  section 
14?  If  not  the  Secretary  will  read  section  15. 

The  Secretary  read  section  15  of  the  article  in  the  language 
following: 

"Sec.  15.  The  existing  Surrogate's  Courts  are  continued,  and 
the  surrogates  now  in  office  shall  hold  their  offices  until  the  expira- 
tion of  their  terms.  Their  successors  shall  be  elected  by  the  electors 
of  their  respective  counties,  and  their  terms  of  office  shall  be  six 
years,  except  in  the  county  of  New  York,  where  they  shall  continue 


August  23.]  CONSTITUTIONAL  CONVENTION.  1187 

to  be  fourteen  years,  and  in  the  county  of  Kings,  where  they  shall 
hereafter  be  fourteen  years.  Surrogates  and  Surrogate's  Courts 
shall  have  the  jurisdiction  and  powers  which  the  surrogates  and 
existing  Surrogate's  Courts  now  possess,  until  it  be  otherwise  pro- 
vided by  the  Legislature.  The  county  judge  shall  be  surrogate  of 
his  county,  except  where  a  separate  surrogate  has  been  or  shall  be 
elected.  In  counties  having  a  population  exceeding  40,000,  wherein 
there  is  no  separate  surrogate,  the  Legislature  may  provide  for  the 
election  of  a  separate  officer  to  be  surrogate,  whose  term  of  office 
shall  be  six  years.  When  the  surrogate  shall  be  elected  as  a  sepa- 
rate officer  his  salary  shall  be  established  by  law,  payable  out  of  the 
county  treasury.  No  county  judge  or  surrogate  shall  hold  office 
longer  than  until  and  including  the  last  day  of  December  next  after 
he  shall  be  seventy  years  of  age.  Vacancies  occurring  in  the  office 
of  county  judge  or  surrogate  shall  be  filled  in  the  same  manner  as 
like  vacancies  occurring  in  the  Supreme  Court.  The  compensation 
of  any  county  judge  or  surrogate  shall  not  be  diminished  during 
his  term  of  office.  For  the  relief  of  Surrogate's  Courts  the  Legisla- 
ture may  confer  upon  the  Supreme  Court  in  any  county  having  a 
population  exceeding  400,000,  the  powers  and  jurisdiction  of  surro- 
gates, with  authority  to  try  issues  of  fact  by  jury  in  probate  causes." 

Mr.  Root  —  Mr.  Chairman,  I  move  to  strike  out  in  lines  2  and  3, 
on  page  12,  the  words  "  and  in  the  county  of  Kings,  where  they 
shall  hereafter  be  fourteen  years."  Those  words  were  included  by 
the  committee,  under  a  misapprehension,  and  the  committee  wishes 
them  withdrawn  from  the  section.  I  think  there  is  no  substantial 
controversy  upon  that  matter. 

Mr.  J.  Johnson  —  Mr.  Chairman,  I  rise  to  second  that  motion. 

Mr.  Cochran  —  Mr.  Chairman,  I  might  say  that  the  chairman  of 
the  Judiciary  Committee  only  anticipated  what  the  minority  of  this 
Convention  wanted  to  prevent  the  majority  on  the  committee  from 
possibly  doing.  We  are  opposed  to  any  increase  of  the  surrogate's 
term  to  fourteen  years,  or  the  increase  of  the  term  of  any  other 
judges  in  our  county,  and  we  hope  this  amendment  will  prevail. 

The  Chairman  put  the  question  on  the  adoption  of  the  amend- 
ment offered  by  Mr.  Root,  and  it  was  determined  in  the  affirmative. 

Mr.  Mereness  —  Mr.  Chairman,  I  desire  to  offer  an  amendment 
to  section  15. 

The  Secretary  read  Mr.  Mereness's  amendment  as  follows: 
In  section  15,  in  line  20,  on  page  12,  before  the  word  "  dimin- 
ished "  insert  the  words  "  increased  or." 


Il88  REVISED  RECORD.  [Thursday, 

Mr.  Mereness  —  Mr.  Chairman,  it  will  be  apparent  at  a  glance 
that  the  only  object  of  this  amendment  is  to  incorporate  in  this  sec- 
tion the  same  provision  that  was  almost  unanimously  incorporated 
into  the  previous  section  in  reference  to  the  other  judges,  and  I 
think  if  this  is  not  done  it  will  be  the  only  place  in  the  Constitution 
where  this  distinction  could  be  made. 

Mr.  H.  A.  Clark  —  Mr.  Chairman,  there  would  be  an  inconsist- 
ency in  the  Constitution  unless  this  amendment  were  adopted.  It 
may  not  have  occurred  to  all  of  the  delegates  in  this  Convention 
that  the  compensation  paid  to  county  judges  and  surrogates  is  paid 
by  the  county,  while  their  salaries  are  fixed  by  the  Legislature. 
Here  is  a  case  where  there  is  no  home  rule  in  counties.  The  salary 
is  provided  for  by  the  Constitution  to  be  paid  out  of  the  county 
treasury,  although  it  is  fixed  by  the  Legislature.  I  do  not  think 
that  there  will  be  any  great  opposition  to  this  amendment.  It  cer- 
tainly will  appear  to  the  members  of  this  Convention  that  if  the 
salaries  of  the  justices  of  the  Supreme  Court  are  neither  to  be 
increased  nor  diminished  during  their  term,  the  same  rule  should 
apply  to  county  judges  and  to  surrogates.  The  members  of  the 
Legislature  find  it  difficult  to  withstand  the  applications  made  by 
county  judges  and  surrogates  for  increase  in  salaries.  To  illustrate, 
the  members  from  certain  counties  are  requested  by  their  county 
judges  and  surrogates  to  see  that  their  salaries  are  changed.  The 
Legislature  has  no  particular  interest  in  it.  It  is  special  legislation 
which  should  be  prohibited  so  far  as  possible.  If  the  members  from 
a  county  introduce  a  bill  for  a  change  of  salary,  members  from  other 
counties,  having  no  interest  in  the  matter,  permit  them  to  fix  the 
salary  as  they  see  fit.  It  seems  to  me  that  it  is  perfectly  proper,  as 
in  the  cases  of  other  judicial  officers,  that  when  the  officer  accepts 
the  position  with  a  fixed  salary  that  salary  should  remain  the  same 
during  his  official  term. 

Mr.  Root  —  Mr.  Chairman,  it  seems  to  me  that  the  same  con- 
siderations which  led  to  including  this  word  "  increase  "  in  the 
article  relating  to  the  salaries  of  the  judges  of  the  Court  of  Appeals 
and  justices  of  the  Supreme  Court  apply  with  even  greater  force 
to  county  judges  and  surrogates  who  are  elected  for  shorter  terms, 
and  who  are  in  more  intimate  relations  with  the  authorities  who 
have  to  do  with  salaries,  and  I  shall,  therefore,  support  this  amend- 
ment, and  I  think  the  great  body  of  the  Judiciary  Committee  will 
do  the  same. 

The  Chairman  put  the  question  on  the  adoption  of  Mr.  Mereness's 
amendment,  and  it  was  determined  in  the  affirmative. 


August  23.]  CONSTITUTIONAL  CONVENTION.  1189 

Mr.  A.  H.  Green — Mr.  Chairman,  I  propose  on  page  12,  line  2, 
to  strike  out  the  word  "  fourteen  "  and  insert  in  place  thereof  the 
word  "  six,"  to  make  it  harmonious  with  the  surrogates  of  all  other 
counties.  I  do  not  see  why  that  distinction  should  be  made,  nor  do 
I  see  any  reason  now  for  putting  on  the  public  these  long  terms  in 
any  instance.  I  am  opposed  to  it,  and  hope  this  amendment  will 
be  adopted. 

The  Chairman  put  the  question  on  the  adoption  of  Mr.  Green's 
amendment,  and  it  was  determined  in  the  negative. 

The  Chairman  —  Are  there  any  further  amendments  to  section 
15?  The  Chairman  hears  none,  and  the  Secretary  will  read  sec- 
tion 1 6. 

The  Secretary  read  section  16,  as  follows: 

"Sec.  1 6.  The  Legislature  may,  on  application  of  the  board  of 
supervisors,  provide  for  the  election  of  local  officers,  not  to  exceed 
two  in  any  county,  to  discharge  the  duties  of  county  judge  and  of 
surrogate,  in  cases  of  their  inability  or  of  a  vacancy,  and  in  such 
other  cases  as  may  be  provided  by  law,  and  to  exercise  such  other 
powers  in  special  cases  as  are  or  may  be  provided  by  law." 

The  Chairman  —  Are  there  any  amendments  to  section  16?  The 
Chair  hears  none  and  the  Secretary  will  read  section  17. 

The  Secretary  read  section  17,  as  follows: 

"  Sec.  17.  The  electors  of  the  several  towns  shall,  at  their  annual 
town  meetings,  or  at  such  other  time  and  in  such  manner  as  the 
Legislature  may  direct,  elect  justices  of  the  peace,  whose  term  of 
office  shall  be  four  years.  In  case  of  an  election  to  fill  a  vacancy 
occurring  before  the  expiration  of  a  full  term,  they  shall  hold  for 
the  residue  of  the  unexpired  term.  Their  number  and  classification 
may  be  regulated  by  law.  Justices  of  the  peace  and  judges  or  jus- 
tices of  inferior  courts  not  of  record,  and  their  clerks,  may  be 
removed  for  cause,  after  due  notice  and  an  opportunity  of  being 
heard  by  such  courts  as  are  or  may  be  prescribed  by  law.  Justices 
of  the  peace  and  District  Court  justices  shall  be  elected  in  the  differ- 
ent cities  of  this  State  in  such  manner,  and  with  such  powers,  and 
for  such  terms,  respectively,  as  shall  be  prescribed  by  law;  all  other 
judicial  officers  in  cities,  whose  election  or  appointment  is  not  other- 
wise provided  for  in  this  article,  shall  be  chosen  by  the  electors  of 
cities,  or  appointed  by  some  local  authorities  thereof." 

The  Chairman  —  Are  there  any  amendments  to  section  17? 

Mr.  C.  A.  Fuller  —  Mr.  Chairman,  I  offer  an  amendment  to  sec- 
tion 17. 


1 190  REVISED  RECORD.  [Thursday, 

The  Secretary  read  Mr.  C.  A.  Fuller's  amendment  as  follows: 
Add  at  the  end  of  section  17  the  following:    "  No  justice,  judge, 
or  justice  of  the  peace,  named  in  this  section,  shall  hold  his  office 
longer  than  until  and  including  the  last  day  of  December  next  after 
he  shall  be  seventy  years  of  age." 

Mr.  C.  A.  Fuller  —  Mr.  Chairman,  when  this  proposition  was 
voted  on  before,  I  understood  it  to  be,  at  least  on  the  part  of  many 
who  voted  that  way,  for  the  reason  that  it  was  offered  at  the  wrong 
place.  I  do  not  care  to  renew  the  remarks  that  I  made  at  that  time, 
except  to  say  that  if  this  is  adopted,  that  it  will  apply  to  all  judicial 
officers  throughout  the  State. 

The  Chairman  put  the  question  on  Mr.  C.  A.  Fuller's  amendment, 

and  it  was  determined  in  the  negative. 

Mr.  Deyo  —  Mr.  Chairman,  I  offer  the  following  amendment: 
Mr.  Deyo's  amendment  was  read  by  the  Secretary  as  follows: 
Page  13,  line  17,  insert  after  the  word  "  as,"  the  words  "  are  or,  " 

so  that  it  will  read,  "  as  are  or  shall  be  prescribed  by  law." 

Mr.  Choate  —  Mr.  Chairman,  before  that  motion  is  put  will  Mr. 

Deyo  explain  the  object  of  his  amendment? 

Mr.  Deyo  —  It  seems  to  me,  Mr.  Chairman,  that  all  existing  pro- 
visions of  law  applicable  to  those  inferior  courts  should  continue  to 
apply  to  them ;  and  if  the  section  is  to  read  as  it  does  now,  "  as  shall 
be,"  it  is  simply  prescribing  that  they  shall  have  the  jurisdiction 
hereafter  given. 

Mr.  A.  B.  Steele  —  Mr.  Chairman,  it  seems  to  me  that  this  Con- 
vention does  not  want  to  adopt  an  amendment  of  that  kind.  To 
illustrate,  there  was  a  proposition  or  a  proposed  amendment,  sub- 
mitted to  the  Convention  by  myself,  and  it  met  with  considerable 
encouragement,  and  especially  by  the  lawyers,  providing  for  a  Dis- 
trict Court  to  take  the  place,  at  least  to  a  certain  extent,  of  the  now 
useless  or  burlesque  Justices'  Court.  I  believe  it  is  a  matter  that 
will,  at  least  at  some  time,  be  brought  about,  so  that  there  may  be 
more  dignity  to  our  inferior  courts.  The  matter  was  submitted  to 
the  Judiciary  Committee,  and  as  I  understand,  after  an  examina- 
tion, they  said  that  that  could  be  provided  for  by  the  Legislature 
under  section  18,  and  among  other  reasons  assigned  was,  that  there 
was  nothing  in  the  Constitution  that  prevented  the  Legislature  from 
taking  the  jurisdiction  from  the  justices  of  the  peace  and  conferring 
it  upon  local  inferior  courts,  provided  the  Legislature  saw  fit  to 
establish  those  in  counties.  Now,  if  this  amendment  is  passed,  as 
I  understand  it,  it  constitutionally  confers  upon  justices  of  the  peace 


August  23.]  CONSTITUTIONAL  CONVENTION.  1191 

the  powers  they  now  have,  the  jurisdiction  they  now  have.  So  that 
if  that  is  done  it  will  be  impossible  for  the  Legislature,  should  they 
see  fit  in  the  future,  to  deprive  them  of  their  jurisdiction  and  confer 
it  upon  inferior  courts.  Well,  do  we  want  to  do  that?  It  seems  to 
me  not.  It  seems  to  me  that  we  should  leave  it  so  that  they  have 
the  jurisdiction  conferred  by  law,  and  then  if  the  Legislature  at  any 
time  in  the  future  should  see  fit,  in  their  wisdom,  to  establish  these 
District  Courts  in  counties  where  it  may  be  proper,  that  they  should 
have  the  right  to  do  it.  I  am  opposed  to  the  amendment  of  Mr. 
Deyo. 

The  Chairman  put  the  question  on  the  adoption  of  Mr.  Deyo's 
amendment,  and  it  was  determined  in  the  affirmative. 

Mr.  Pratt  —  Mr.  Chairman,  I  move  to  amend  section  17  by  strik- 
ing out  in  line  15  of  page  13  the  word  "  shall,"  and  insert  in  place 
thereof  the  word  "  may."  As  the  present  section  reads,  it  seems  to 
me,  it  compels  the  election  of  justices  of  the  peace  in  every  city  of 
the  State.  The  courts  of  justice  of  the  peace  are  being  rapidly 
superseded  in  all  the  smaller  cities  of  the  State  by  special  courts 
organized  with  substantially  the  same  jurisdiction  as  justices  of  the 
peace  have  heretofore  had.  This  provision,  if  allowed  to  stand,  will 
compel  the  election  of  justices  of  the  peace  in  every  city  notwith- 
standing other  courts  are  organized  having  the  same  jurisdiction. 

The  Chairman  put  the  question  on  the  adoption  of  Mr.  Pratt's 
amendment,  and  it  was  determined  in  the  affirmative. 

The  Chairman  —  Are  are  there  any  other  amendments  to  section 
17?  The  Chair  hears  none,  and  the  Secretary  will  read  section  18. 

The  Secretary  read  section  18  as  follows: 

"  Sec.  18.  Inferior  local  courts  of  civil  and  criminal  jurisdiction 
may  be  established  by  the  Legislature,  but  no  inferior  local  court 
now  existing  or  hereafter  created  shall  be  a  court  of  record.  The 
Legislature  shall  not  hereafter  confer  upon  any  inferior  or  local 
court  of  its  creation  any  equity  jurisdiction  or  any  greater  jurisdic- 
tion in  other  respects  than  is  conferred  upon  County  Courts  by  or 
lature  may  direct." 

"  Except  as  herein  otherwise  provided,  all  judicial  officers  shall  be 
elected  or  appointed  at  such  times  and  in  such  manner  as  the  Legis- 
lature may  direct." 

Mr.  McClure  —  Mr.  Chairman,  I  offer  an  amendment  to  sec- 
tion 18. 


II92  REVISED  RECORD.  [Thursday, 

The  Secretary  read  Mr.  McClure's  amendment  as  follows: 

Mr.  McClure  moves  to  amend  section  18  by  striking  out  in  line 
24,  of  page  13,  the  words  "  now  existing  or." 

Mr.  McClure  —  Mr.  Chairman,  the  object  of  this  amendment  is 
to  leave  with  the  courts  of  record,  now  being  courts  of  record  and 
designated  as  inferior  courts,  the  advantage  of  having  them  remain 
courts  of  record.  The  matter  has  been  explained  thoroughly  to  the 
Judiciary  Committee,  and,  as  I  understand,  it  is  agreeable  to  them 
that  this  should  be  adopted.  There  are  courts  of  record,  inferior 
courts  of  record  now,  of  great  value  to  the  community,  and  the 
exemplification  of  their  record  is  a  matter  of  necessity  in  the  interest 
•of  litigants.  I  hope  this  amendment  will  prevail,  which  will  leave 
those  courts  of  record  which  are  now  courts  of  record. 

Mr.  Root  —  Mr.  Chairman,  on  the  whole,  I  think  it  may  be  an 
interference  with  the  existing  court,  without  sufficient  consideration 
and  examination  into  the  special  inconveniences  which  would  result 
if  we  kept  in  the  words  now  existing,  and  I  think  we  must  yield  to 
the  demand  to  have  these  words  stricken  out. 

Mr.  T.  A.  Sullivan  —  Mr.  Chairman,  may  I  ask  to  what  courts 
this  provision  will  apply? 

The  Chairman  —  The  City  Courts  of  New  York. 

The  Chairman  put  the  question  on  the  adoption  of  Mr.  McClure's 
amendment,  and  it  was  determined  in  the  affirmative. 

Mr.  Roche  —  Mr.  Chairman,  I  offer  an  amendment  to  this 
section. 

The  Secretary  read  Mr.  Roche's  amendment  as  follows: 

On  line  24,  page  13,  after  the  word  "  record  "  insert  "  the  judges 
or  magistrates  of  said  courts,  including  the  successors  of  those  now 
in  office  therein,  shall  be  elected  by  the  electors  of  the  localities  or 
districts  in  which  such  courts  are  or  may  be  established." 

Mr.  Roche  —  Mr.  Chairman,  I  respectfully  invite  the  attention 
of  the  committee,  and  particularly  the  Judiciary  Committee,  to  this 
article.  Under  this  section,  which  is  substantially  the  section  now 
in  the  Constitution,  the  Legislature  has  from  time  to  time  created 
very  important  courts,  with  very  large  jurisdiction,  for  the  populous 
cities  of  the  State.  In  some  cases  the  judges  or  magistrates  are 
elected,  and  in  others  they  are  appointed.  Here  in  the  city  of 
Albany  you  have  the  office  of  recorder,  which  is  a  very  important 
office,  with  large  jurisdiction,  both  civil  and  criminal.  The  recorder 
is  elected.  In  Cohoes  you  have  a  recorder  who  is  elected.  In  Troy 
we  have  Justices'  Courts,  and  the  justices  are  elected  by  the  people, 


August  23.]        ^  CONSTITUTIONAL  CONVENTION.  1193 

and  police  magistrates,  with  large  jurisdiction,  who  are  appointed 
by  the  mayor.  Now,  we  have  asserted  our  belief  in  the  capacity  of 
the  people  to  elect  their  judicial  officers  from  the  highest  to  the 
lowest.  Most  of  these  courts  are  located,  as  I  have  said,  in  cities. 
You  permit  the  people  residing  in  those  cities,  which  constitute 
quite  often  the  major  portion  of  the  population  and  wealth  of  the 
county,  to  elect  the  county  judge  and  the  surrogate.  Now,  I  insist 
that  what  it  is  safe  to  allow  the  people  to  do  in  reference  to  these 
important  officers,  it  is  equally  safe  and  proper  that  they  should  be 
allowed  to  do  with  reference  to  these  local  courts.  There  is  another 
thing  about  it,  Mr.  Chairman,  you  give  the  people  as  well  as  the 
profession  a  better  chance.  If  the  officer  is  to  be  appointed  by  the 
mayor,  the  position  can  be  used  by  that  officer  for  his  own  benefit, 
whether  it  is  personal  business  or  political  advantage.  John  Adams 
said  that  he  who  appoints  the  judges  may  have  what  law  he  pleases, 
and  there  is  a  great  deal  of  truth  in  the  saying  of  that  wise  old  states- 
man. A  man  may  be  elected  mayor  in  a  locality  who  is  in  a  par- 
ticular kind  of  business  which  meets  with  great  competition.  He 
may  put  on  the  bench,  particularly  of  the  criminal  courts,  a  person 
who  is  in  his  power,  some  person  who  is  his  particular  friend,  who 
may  use  the  business  and  the  power  of  the  court  to  forward  the 
political  or  business  interests  of  the  head  of  the  city  government, 
making  distinction  and  discriminations  between  his  interests  and 
his  business  and  those  of  his  competitors.  Particularly  will  this  be 
so  in  lines  of  business  over  which  the  excise  boards  in  localities 
have  more  or  less  control.  Now,  it  seems  to  me,  Mr.  Chairman, 
that  this  great  power  should  not  rest  with  any  individual;  it  should 
be  left  with  the  people.  Let  each  political  party  present  to  the 
people  the  names  of  worthy  candidates  taken  from  among  the  legal 
profession  for  these  important  positions.  The  people  then  have  an 
opportunity  to  select  from  among  them  all,  and  the  selection  is  not 
left  to  one  individual  in  the  locality.  I  hope,  therefore,  Mr.  Chair- 
man, that  the  proposition  will  receive  the  favorable  consideration  of 
the  committee. 

Mr.  Holcomb  —  Mr.  Chairman,  I  offer  an  amendment  to  the 
amendment  offered  by  the  gentleman  from  Rensselaer,  to  the  effect 
that  the  terms  of  the  persons  now  in  office  shall  not  be  affected 
thereby.  Add  that  at  the  end. 

Mr.  Root  —  Mr.  Chairman,  this  amendment  ought  not  to  be 
adopted  by  any  body,  constitutional  or  otherwise,  without  a  careful 
examination  into  the  convenience  and  the  wishes  and  the  circum- 
stances in  every  city  of  the  State.  The  idea  that  we  should  in  a 
moment  here  undertake  to  introduce  into  the  legislative  power  of 


1194  REVISED  RECORD.  [Thursday, 

accommodating  special  localities,  by  creating  local  and  inferior 
courts,  a  hide-bound  rule,  seems  to  me  to  be  altogether  beyond 
toleration.  We  establish  a  fixed  system  as  to  the  courts  of  general 
jurisdiction,  and  we  leave  to  the  Legislature  the  power  to  regulate 
the  inferior  courts.  How  can  we  say  what  ought  to  be  done  in 
meeting  the  special  exigencies  in  each  case?  How  does  the  gentle- 
man from  Rensselaer  know,  and  what  does  he  know  about  the  wants 
of  these  local  and  inferior  courts  in  the  city  of  New  York  and  in  the 
city  of  Brooklyn?  It  is  a  matter  that  we  ought  not  to  pass  upon 
here,  and  if  we  could  pass  upon  it  intelligently,  it  ought  not  to  be 
taken  from  the  Legislature.  Let  us  leave  something  to  the  Legis- 
lature of  the  State  to  do. 

Mr.  Holcomb  —  Mr.  Chairman,  I  am  entirely  at  one  with  the 
chairman  of  the  Judiciary  Committee.  I  offered  my  amendment 
with  this  idea,  that  if  the  amendment  of  the  gentleman  from  Rensse- 
laer (Mr.  Roche)  were  to  be  adopted,  certainly  there  should  be  a 
saving  clause  in  it.  The  litigants  should  not  be  interfered  with.  I 
am  opposed  to  the  amendment  entirely. 

The  Chairman  put  the  question  on  the  adoption  of  Mr.  Holcomb's 
amendment,  and  it  was  determined  in  the  negative. 

The  Chairman  put  the  question  on  the  adoption  of  Mr.  Roche's 
amendment,  and  it  was  determined  in  the  negative. 

The  Chairman  —  Are  there  any  further  amendments  to  section 
18?  The  Chair  hears  none,  and  the  Secretary  will  read  section  19. 

The  Secretary  read  section  19  as  follows: 

"  Sec.  19.  Clerks  of  the  several  counties  shall  be  clerks  of  the 
Supreme  Court,  with  such  powers  and  duties  as  shall  be  prescribed 
by  law.  The  justices  of  the  Appellate  Division  in  each  department 
shall  have  power  to  appoint  and  to  remove  a  clerk  who  shall  keep 
his  office  at  a  place  to  be  designated  by  said  justices.  The  clerk  of 
the  Court  of  Appeals  shall  keep  his  office  at  the  seat  of  government. 
The  clerk  of  the  Court  of  Appeals  and  the  clerks  of  the  Appellate 
Division  shall  receive  compensation  established  by  law  and  paid  out 
of  the  public  treasury." 

The  Chairman  —  Are  there  any  amendments  to  section  19? 

Mr.  Lester  —  Mr.  Chairman,  I  move  to  amend  section  19  by 
inserting  after  the  word  "  place,"  in  line  10,  the  words  "  within  such 
department,"  so  as  to  compel  the  location  of  the  clerk's  office  in 
a  department  to  be  within  the  limits  of  that  department. 

The  Chairman  put  the  question  on  the  adoption  of  Mr.  Lester's 
amendment,  and  it  was  determined  in  the  negative. 


August  23. J  CONSTITUTIONAL  CONVENTION.  1195 

The  Chairman  —  Are  there  any  further  amendments  to  section 
19?  The  Chair  hears  none,  and  the  Secretary  will  read  section  20. 

The  Secretary  read  section  20  as  follows: 

"  Sec.  20.  No  judicial  officer,  except  justices  of  the  peace,  shall 
receive  to  his  own  use  any  fees  or  perquisites  of  office;  nor  shall  any 
judge  of  the  Court  of  Appeals,  or  justice  of  the  Supreme  Court,  or 
any  county  judge  or  surrogate  hereafter  elected  in  a  county  having 
a  population  exceeding  100,000,  practice  as  an  attorney  or  counselor 
in  any  court  of  record  in  this  State,  or  act  as  referee. 

"  The  Legislature  may  impose  a  similar  prohibition  upon  county 
judges  and  surrogates  in  other  counties. 

"  In  counties  where  the  county  judge  and  surrogate  shall  be  pro- 
hibited from  practicing  law,  the  Legislature  may  extend  the  term  of 
office  to  not  exceeding  ten  years. 

"  No  one  shall  be  eligible  to  the  office  of  judge  of  the  Court  of 
Appeals,  justice  of  the  Supreme  Court,  county  judge  or  surrogate, 
who  is  not  an  attorney  and  counselor  of  this  State." 

Mr.  C.  A.  Fuller  —  Mr.  Chairman,  I  offer  the  following 
amendment: 

The  Secretary  read  the  amendment  as  follows: 

On  page  14,  in  line  19,  after  the  word  "  elected,"  strike  out  all 
down  to  and  including  the  word  "  thousand,"  in  line  20.  Also,  on 
page  14,  strike  out  lines  22,  23,  24,  25  and  26. 

Mr.  Fuller —  Mr.  Chairman,  the  object  of  this  amendment  to  the 
section  is  to  prohibit  county  judges  and  surrogates  in  any  county 
from  practicing  law,  from  doing  business  in  the  Supreme  Court.  It 
is  true  that  the  section  as  it  now  stands  provides  that  the  Legislature 
may  impose  a  similar  prohibition  upon  county  judges  and  surro- 
gates in  other  counties,  the  other  counties  being  those  not  having 
a  population  of  100,000.  Now,  sir,  I  think  it  will  be  a  wise  prohibi- 
tion to  forbid  these  judicial  officers  from  coming  into  court  and 
competing  with  other  attorneys  in  the  trial  of  causes  in  the  Supreme 
Court.  Any  one  can  see  that  it  is  very  likely  to  occur  that  the  person 
who  holds  the  office  of  county  judge  one  week,  sitting  upon  the 
bench  and  trying  civil  and  criminal  cases,  and  the  next  week  step- 
ping in  to  the  bar  of  the  Supreme  Court  and  there  trying  causes  for 
his  personal  clients  against  other  members  of  the  bar,  puts  him  at 
an  advantage  and  the  other  lawyers  at  a  disadvantage.  Then  again, 
embarrassments  arise  in  this  way,  without  his  fault  or  connivance. 
Very  likely  he  has  clients  for  whom  he  is  doing  business,  who  will 
come  before  the  Supreme  Court,  who  happen  to  be  parties  in  causes 
that  are  being  tried  before  him  while  sitting  as  presiding  judge  of 


1196  REVISED  RECORD.  [Thursday, 

the  County  Court;  and,  in  my  opinion,  it  is  too  much  of  a  strain 
upon  human  nature  to  require  a  man  holding  the  scales  of  justice 
to  hold  them  evenly  when  there  is  this  great  impediment  dragging 
upon  his  skirts  in  favor  of  one  party  to  the  disadvantage  of  the 
other.  Therefore,  I  hope  that  this  Convention  may  put  into  the 
Constitution  a  provision  looking  to  the  correction  of  this  state 
of  things. 

The  Chairman  put  the  question  on  the  adoption  of  Mr.  Fuller's 
amendment,  and  it  was  deteomined  in  the  negative. 

Mr.  Dickey  —  Mr.  Chairman,  I  offer  the  following  amend- 
ment: On  page  15,  strike  out  lines  i,  2  and  3. 

Mr.  Chairman,  I  will  state  my  reasons  for  offering  this 
amendment. 

The  clause  now  reads; 

"No  one  shall  be  eligible  to  the  office  of  judge  of  the  Court 
of  Appeals,  justice  of  the  Supreme  Court,  county  judge  or  sur- 
rogate, who  is  not  an  attorney  and  counselor  of  this  State." 
Most  of  the  delegates  to  this  Convention  undoubtedly  think  that 
those  offices  ought  to  be  limited  to  attorneys  and  counselors,  and  in 
practice  the  offices  would  be  filled  by  them.  But,  putting  this  pro- 
vision into  the  judiciary  article,  it  seems  to  me  we  are  legislating 
for  a  class,  the  lawyers  of  the  community,  and  saying  to  the  people 
that  they  cannot  elect  anybody  to  any  one  of  these  places  unless 
he  belongs  to  that  class  of  attorneys  and  counselors.  I  think  it  may 
be  safely  submitted  to  the  people  to  select  proper  candidates  for 
the  places;  not  necessarily  an  attorney  or  counselor,  but  if  they  see 
fit  in  their  wisdom  to  elect  somebody  else  to  any  one  of  these  places 
it  ought  to  be  their  right  and  privilege  to  do  so.  For  these  reasons 
I  have  offered  this  amendment. 

Mr.  M.  E.  Lewis  —  Mr.  Chairman,  I  move  to  strike  out,  or  at 
the  proper  time  I  shall  move  to  strike  out,  the  words  "  one  hundred 
thousand,"  and  insert  in  lieu  thereof  the  words  "  fifty  thousand." 

Mr.  Spencer  —  Mr.  Chairman,  the  amendment  offered  by  Mr. 
Dickey,  I  think,  ought  to  be  adopted.  I  do  not  see  that  the  pro- 
vision is  of  any  particular  value,  as  I  assume  that  the  people  will 
elect  lawyers  to  these  offices,  if  they  can  find  a  lawyer  within  the 
county.  Now,  so  long  as  the  county  of  Hamilton  is  permitted  to 
remain  a  county  within  this  State,  the  difficulty  may  arise  that  the 
people  in  that  county  may  not  be  able  to  find  any  lawyer  to  fill  the 
office  of  county  judge  and  surrogate.  As  I  understand  it,  the 
incumbents  of  the  office  of  surrogate  for  a  great  many  years  have 
not  been  lawyers;  and  the  time  has  been  when  the  county  judge  of 


August  23.]  CONSTITUTIONAL  CONVENTION.  1197 

that  county  was  not  a  lawyer,  for  the  reason  that  there  was  no 
lawyer  residing  in  the  county;  and  I  think  the  chronic  condition  in 
that  county  is  that  when  they  do  have  a  lawyer  as  county  judge  he 
resides  or  spends  his  time  in  the  adjoining  county,  hiring  a  house 
a  few  rods  over  the  line  so  as  to  be  able  to  say  that  he  is  a  resident 
of  the  county.  I,  therefore,  am  in  favor  of  the  amendment  pro- 
posed by  Mr.  Dickey,  but  for  this  reason  only. 

Mr.  Dickey  —  Mr.  Chairman,  I  call  for  a  rising  vote  upon  my 
amendment. 

Mr.  Root  —  Mr.  Chairman,  I  desire  to  say  a  word  upon  this  sub- 
ject. There  have  been  several  times  nominated  for  judges,  justices 
of  the  highest  courts  in  this  State,  recently,  men  who  were  not 
lawyers.  There  have  been  recently,  in  western  States,  men  nomi- 
nated and  elected  to  high  judicial  office  who  have  gone  to  a  law 
school  after  they  were  elected  in  order  to  try  and  qualify  them- 
selves for  such  a  position.  Inasmuch  as  the  question  whether 
there  shall  be  lay  judges  on  the  bench  or  only  professional  judges 
is  a  question  of  principle  properly  belonging  in  the  Constitution, 
and  as  it  is  a  practical  question,  arising  in  these  days  by  nomina- 
tions to  office,  it  seems  to  me  highly  appropriate  that  we  should 
declare  which  is  the  principle  to  be  adopted  and  followed  in  this 
State,  and  I  believe  the  provision  ought  to  stay  there. 

The  Chairman  put  the  question  on  the  adoption  of  Mr.  Dickey's 
amendment,  and  it  was  determined  in  the  negative  by  a  rising  vote. 

Mr.  M.  E.  Lewis  —  Mr.  Chairman,  I  now  renew  my  motion  to 
strike  out  the  words  "  one  hundred  thousand,"  and  insert  the  words 
"  sixty  thousand."  The  number  of  counties  affected  by  the  present 
arrangement  of  100,000  is  only  ten.  I  believe  there  are  other  coun- 
ties which  may  safely  be  forbidden  from  permitting  their  county 
judges  and  surrogates  to  practice  law.  If  the  number  be  fixed  at 
60,000,  the  counties  to  be  affected  will  be  twenty-three  in  number. 
In  all  those  counties,  I  believe,  the  population  is  wealthy  enough 
to,  have  them  paid  such  salaries  as  will  attract  men  to  the  offices. 

Mr.  Ackerly  —  Mr.  Chairman,  I  hope  this  motion  will  not  pre- 
vail. Take,  as  an  illustration,  our  county,  which  has  a  population 
of  over  60,000.  We  only  pay  our  county  judge  $1,500.  Last  win- 
ter the  board  of  supervisors  were  willing  that  his  salary  should  be 
increased  to  $2,000.  The  Legislature  passed  an  act  increasing  it 
to  $2,000,  and  the  Governor  vetoed  it.  Now,  in  justice  to  himself, 
he  would  have  to  resign  his  office,  if  that  is  passed,  because,  as  you 
have  adopted  or  proposed  to  adopt  the  article,  no  one  can  increase 
or  diminish  his  salary,  and  I  say  that  you  cannot  get  an  efficient 


1198  REVISED  RECORD.  [Thursday, 

man  to  fill  his  place  in  that  county  for  $1,500,  if  he  is  cut  off  from 
practice  in  the  Supreme  Court,  and  I  suppose  that  other  counties 
will  be  on  the  same  footing.  So  I  hope  it  will  be  voted  down. 

Air.  Nichols  —  Mr.  Chairman,  if  I  thought  there  was  any  possi- 
bility of  the  passage  of  this  amendment,  I  should  like  to  see  the 
matter  returned  to  the  Judiciary  Committee  for  further  considera- 
tion. It  seems  to  me,  however,  that  the  proposition  is  so  very 
plain,  in  view  of  the  peculiar  construction  of  the  act,  as  it  now  is, 
that  we  ought  not  to  spend  any  further  time  in  discussing  it.  As 
has  been  said  by  the  gentleman  who  has  just  taken  his  seat,  it  will 
be  utterly  impossible  for  the  surrogates  who  are  now  serving 
throughout  the  State  of  New  York  in  counties  of  less  than  100,000, 
to  continue  in  their  offices.  We  have  invited  them  into  the  judi- 
ciary assuring  them  that  they  may  practice  law.  We  have  said  to 
them,  your  salaries  cannot  be  increased.  This  proposition  means 
that  they  must  either  vacate  their  offices  or  surrender  their  practice. 
That  is  unfair  to  the  incumbent,  as  a  primary  proposition,  and 
it  is  unfair  to  the  community,  as  a  secondary  proposition.  Our 
surrogates  throughout  the  State  are  competent  men.  You  cannot 
increase  their  salaries,  and,  if  you  drive  them  out  of  office,  you 
will  get  inferior  men  for  those  positions.  It  is  the  worst  sort  of 
economy.  It  seems  to  me  the  proposition  ought  to  be  defeated 
without  hesitation. 

Mr.  E.  R.  Brown  —  Mr.  Chairman,  there  has  been  such  a  general 
disposition  shown  here  to  tear  this  article  to  pieces  that  I  am  fearful 
that  this  proposition  may  be  adopted,  and  that  is  my  only  excuse 
for  rising.  I  will  take  occasion,  however,  to  say  one  thing  in  addi- 
tion touching  this  point.  It  would  be  a  very  improper  amendment, 
so  far  as  my  county  is  concerned,  but,  on  the  other  hand,  if  the 
committee  had  seen  fit  or  should  see  fit  now  to  propose  an  amend- 
ment which  should  compel  the  fixing  of  salaries  of  county  judges 
by  general  acts,  and  permitting  the  Legislature  to  divide  the  coun- 
ties into  classes  for  that  purpose,  so  that  there  would  be  some 
uniformity  in  the  matter,  I  think  it  would  result  in  much  better 
compensation  to  those  officers  and  a  better  class  of  officers,  and,  as  a 
consequence,  the  State  would  be  armed  with  a  better  judiciary. 
I  sincerely  trust,  however,  that  no  such  proposition,  as  is  now  before 
the  House,  will  prevail.  It  ought  not  to  prevail,  although  I  believe 
the  subject  is  one  that  should  receive  further  attention. 

Mr.  Marshall  —  In  explanation  of  the  section,  as  it  has  been 
adopted  by  the  Judiciary  Committee,  and  to  answer  the  remarks 
made  by  the  gentleman  from  Monroe  (Mr.  M.  E.  Lewis),  I  would 


August  23.]  CONSTITUTIONAL  CONVENTION.  1199 

call  attention  to  the  fact  that  while  there  is  an  absolute  prohibition, 
in  respect  to  county  judges  or  surrogates  hereafter  elected  in  coun- 
ties having  a  population  exceeding  100,000  from  practicing,  there 
is  also  a  provision  in  lines  22  and  23  in  section  20  that  the  Legisla- 
ture may  impose  a  similar  prohibition  upon  county  judges  and 
surrogates  in  other  counties,  the  reason  of  this  provision  being  that 
the  Legislature  could  then  make  provision  by  law  which  would  fix 
the  salaries  of  the  county  judges  and  surrogates  in  such  counties 
at  such  amounts  as  will  make  it  proper  for  the  passage  of  a  law  pro- 
hibiting those  officers  from  practicing  after  the  changed  salaries 
go  into  effect.  So  that  it  will  be  possible  to  have  this  salutary  prin- 
ciple applied  to  all  counties  in  the  State,  but  until  proper  provision 
is  made  to  compensate  the  judges,  and  until  provision  is  made  to 
take  care  of  such  cases  as  have  been  suggested  by  the  gentleman 
from  Suffolk  (Mr.  Ackerly),  it  is  only  proper  to  put  into  the  Con- 
stitution the  permissive  provision  contained  in  lines  22  and  23,  as 
reported. 

The  Chairman  put  the  question  on  the  adoption  of  Mr.  Lewis's 
amendment,  and  it  was  determined  in  the  negative. 

Mr.  Hirschberg  —  Mr.  Chairman,  I  move  to  amend  the  section 
by  inserting  between  the  lines  19  and  20  the  words  "  and  twenty," 
making  it  read  "  one  hundred  and  twenty  thousand,"  instead  of 
"  one  hundred  thousand."  My  object  in  offering  that  amendment 
is  this:  The  limitation  at  100,000  affects  ten  counties,  of  which  the 
smallest  county  has  a  population  of  123,756,  according  to  the  census 
of  1892;  that  is  the  county  of  Oneida.  So  that  fixing  the  limit 
at  a  population  of  120,000  will  not  take  this  reform  away  from  any 
county  to  which  it  is  given  by  the  article,  as  reported  by  the  com- 
mittee. On  the  other  hand,  of  the  counties  of  the  State  under 
100,000  to-day,  there  is  no  county  which  can  possibly  be  affected 
by  it  during  the  life  of  this  Constitution,  excepting  the  county  of 
Orange.  The  county  of  Orange,  according  to  the  census  of  1892, 
has  a  population  of  97,760.  It  is  exceedingly  likely  that  its  present 
population  is  about  100,000.  So  that  if  this  amendment  is  adopted, 
as  it  comes  from  the  committee,  the  probabilities  are  that  the 
county  judge  to  be  elected  this  fall  will  find  at  the  commencement 
of  his  term,  after  he  has  been  elected  for  six  years,  a  salary  fixed 
by  the  county  at  the  sum  of  $1,500,  which  can  never  be  increased 
during  his  term ;  that  his  practice  will  be  taken  away  from  him  dur- 
ing the  term  for  which  he  was  elected.  It  seems  to  me  that  that 
is  an  injustice,  and  that  it  is  hardly  necessary  that  there  should  be 
a  provision  in  the  organic  law  for  the  purpose  of  affecting  one  only 
of  the  counties  of  the  State.  Now,  as  to  the  other  counties  under 


1200  REVISED  RECORD.  [Thursday, 

the  county  of  Orange  in  population,  there  are  but  three  counties, 
which,  according  to  the  census  of  1892,  had  a  population  even 
approaching  the  figure  of  90,000.  There  is  not  one  between  90,000 
and  a  100,000,  not  one  in  the  entire  State.  The  three  counties 
having  a  population  of  over  80,000,  and  there  are  only  three,  are 
the  counties  of  St.  Lawrence,  Steuben  and  Ulster.  St.  Lawrence, 
at  86,254;  Steuben,  82,468,  and  Ulster,  87,652,  lacking,  respectively, 
13,746,  17,532  and  12,348  from  coming  under  the  reform  designated 
in  this  article.  I  have  looked  at  the  growth  of  those  counties  and 
I  find  that  taking  the  census,  as  it  appears  in  the  Legislative  Manual 
for  the  current  year,  in  1860  St.  Lawrence  had  83,689  population; 
Steuben,  66,690,  and  Ulster,  76,381.  Giving  these  counties  the 
same  increase  of  population  in  the  succeeding  years  that  they  have 
managed  to  attain  in  the  past  thirty-two  years,  it  would  take 
St.  Lawrence  county  160  years  to  have  a  population  of  100,000,  and 
it  would  take  Stenben  and  Ulster  each  over  thirty-five  years  to 
attain  a  population  of  100,000.  So  that  not  only  no  county  now 
existing  in  the  State  having  a  population  of  over  100,000  will  be 
affected  by  the  change  to  120,000,  but  no  county  under  100,000 
will  be  deprived  of  the  benefit  of  this  reform  by  the  change  during 
the  next  thirty-five  years.  Therefore,  I  ask  the  Convention  to 
adopt  those  figures  instead  of  those  recommended  by  the  committee, 
because  it  affects  no  county  in  the  State,  except  that  from  which  I 
come,  and  the  objection  to  affecting  that  county  .by  them  is  that  it 
is  right  on  the  verge  of  100,000,  and  will  not  be  able  to  regulate  the 
affairs  of  its  county  officers  without  the  knowledge  of  the  United 
State  census  that  is  to  be  taken,  and  the  effect  may  be  during 
the  term  of  the  present  incumbent. 

Mr.  Root  —  Mr.  Chairman,  would .  not  the  object  which  the 
gentleman  from  Orange  (Mr.  Hirschberg)  wishes  to  attain,  be 
equally  well  attained  by  putting  in  the  words  "  according  to  the 
then  last  State  enumeration,"  after  the  word  "  thousand,"  in  line  20, 
on  page  14?  That  is,  as  I  understand  it,  the  difficulty  that  he  finds 
that  his  county  of  Orange  is  liable  soon  to  run  into  the  100,000 
class,  and  he  mentions  other  counties  which  may  before  a  great 
while.  But  the  difficulty  he  finds  is  that  they  never  can  tell  how 
soon  they  may  be  changed  in  class.  I  can  see  that  there  is  a  diffi- 
culty in  not  having  some  fixed  standard  of  population  to  refer  to. 
And,  if  in  line  20,  after  the  word  "  thousand,"  we  include  the 
words  "  according  to  the  then  last  State  enumeration,"  it  would 
read  in  this  way — — 

First  Vice-President  Alvord  here  resumed  the  chair. 


August  23.]  CONSTITUTIONAL  CONVENTION.  I2oi 

The  President  pro  tempore —  At  the  request  of  the  presiding  offi- 
cer of  this  Convention,  I  am  asked  to  give  five  minutes  to  a  matter 
of  business  that  must  necessarily  be  done. 

Mr.  McClure,  from  the  Special  Committee  on  State  Forests,  pre- 
sented a  report,  which  was  read  by  the  Secretary  as  follows: 

To  the  Constitutional  Convention: 

The  Special  Committee  on  State  Forest  Preservation,  which  was 
directed  to  consider  and  report  what,  if  any,  amendments  to  the 
Constitution  should  be  adopted  for  the  preservation  of  the  State 
forests,  respectfully  reports: 

That  your  committee  has  had  presented  to  it  many  valuable 
arguments  and  statements  bearing  upon  the  matter,  and,  after 
careful  consideration,  has  unanimously  reached  the  conclusion  that 
it  is  necessary  for  the  health,  safety  and  general  advantage  of  the 
people  of  the  State  that  the  forest  lands  now  owned  and  hereafter 
acquired  by  the  State,  and  the  timber  on  such  lands,  should  be 
preserved  intact  as  forest  preserves,  and  not,  under  any  circum- 
stances, be  sold. 

Your  committee  is  further  of  the  opinion  that,  for  the  perfect 
protection  and  preservation  of  the  State  lands,  others  lands  con- 
tiguous thereto  should,  as  soon  as  possible,  be  purchased  or  other- 
wise acquired,  but  feel  that  any  action  to  that  end  is  more  properly 
within  the  province  of  the  Legislature  than  of  this  Convention. 

Your  committee  recommends  the  adoption  by  this  Convention 
of  the  following,  as  an  amendment  to  the  Constitution,  namely : 

O.,  I.  No.  393,  P.  No.  452. — "  The  lands  of  the  State  now  owned 
or  hereafter  acquired,  constituting  the  forest  preserves,  shall  be 
forever  kept  as  wild  forest  land.  They  shall  not,  nor  shall  the 
timber  thereon,  be  sold. 

(Signed)         DAVID  McCLURE, 

Chairman. 
Dated  August  23,  1894. 

The  report  was  received  and  referred  to  the  Committee  of  the 
Whole. 

Mr.  McClure  —  Mr.  President,  I  move  that  the  report  be  made 
a  special  order  for  Saturday  morning  next. 

The  President  put  the  motion  of  Mr.  McClure, -and  it  was  deter- 
mined in  the  affirmative. 

76 


1202  REVISED  RECORD.        [Thursday,  August  23.] 

Mr.  Hedges,  from  the  Committee  on  Militia,  to  which  was 
referred  the  proposed  constitutional  amendment,  introduced  by  Mr. 
Cochran  (introductory  No.  333),  to  amend  article  n  of  the  Con- 
stitution, relating  to  the  militia,  reported  in  favor  of  the  passage 
of  the  same,  with  some  amendments. 

Mr.  Cochran  —  Mr.  President,  as  the  report  is  very  lengthy,  1 
move  that  the  reading  of  it  be  dispensed  with,  and  that  it  be  placed 
on  file. 

The  President  put  the  question  on  the  motion  of  Mr.  Cochran, 
and  it  was  determined  in  the  affirmative. 

The  committee  also  returned  proposed  constitutional  amend- 
ment No.  233,  introduced  by  Mr.  Tucker,  the  same  being  embodied 
in  the  foregoing  report. 

Mr.  Gilbert  moved  that  general  order  No.  69  be  reprinted,  it 
having  been  printed  incorrectly. 

The  President  put  the  question  on  the  motion  of  Mr.  Gilbert, 
and  it  was  determined  in  the  affirmative. 

Mr.  Gilbert  made  a  similar  motion  in  regard  to  general  order 
No.  70,  which  prevailed. 

The  Convention  here  took  a  recess  until  three  o'clock. 


DATE  DUE 


PRINTED  IN  U..S.A. 


a  cTO 


020 


